Canada has failed to negotiate a funding agreement with the Teslin Tlingit Council (TTC) in a way that takes into account the Yukon First Nation’s citizenship despite having a legal obligation to do so, the Yukon Supreme Court has ruled.
In a Jan. 15 decision, Chief Justice Ron Veale found that Canada “has continuously failed to negotiate” a financial transfer agreement (FTA) with the TTC, “pursuant to its legal obligation” since 2010, the last time a FTA was signed.
FTAs are supposed to be renewed every five years; however, the TTC’s FTA has only been extended since 2010 due to what it says are stalled or improper negotiations with Canada. The agreements make up 70 to 75 per cent of the First Nation’s annual revenue.
The TTC had filed a petition to the court in December 2017 seeking a judicial review of negotiations surrounding its FTA with Canada.
In the petition, which was heard in court in early December, the TTC argued that it has been chronically underfunded for years because Canada has “refused or failed” to negotiate a FTA in a way that adheres to its self-government and final agreements, thereby breaking the law.
It sought six declarations from the court outlining Canada’s alleged failures.
Canada, in response, argued the TTC’s petition was “premature and unnecessary” as negotiations were still underway, and that the court granting TTC’s requested declarations could have undue impacts on negotiations with TTC and other self-governing First Nations.
In his decision, Veale declared that Canada has a legal obligation to negotiate a FTA with TTC that takes into account funding based on the TTC’s citizenship. He also declared that during negotiations, 10 factors outlined in TTC’s self-government agreement — such as giving TTC enough resources to provide public services for its citizens at a level comparable to other places in the Yukon and taking into account TTC’s specific capital and operational needs — “may” be taken into account.
Under its final agreement, TTC citizenship is based not on status under the Indian Act, but on a blood quantum system.
“This definition of Citizenship was a monumental achievement because it terminated the colonial and divisive status versus non-status distinction that artificially divided Yukon First Nations members,” Veale wrote.
However, Canada continues to base its funding for the TTC on how many of TTC citizens are “Status Indians” instead of TTC’s own citizenship count.
About 25 per cent of TTC’s citizens do not have “status.”
The discrepancy and resulting financial shortfalls have been noted in several joint reviews in recent years, Veale wrote, but, nonetheless, was not addressed during negotiations for the 2010 FTA.
“The implication for Canada’s interpretation is that it effectively ignores or downplays the constitutional obligation that flows from (TTC’s final agreement),” Veale wrote.
“… Canada submitted that this declaration is inconsistent with reconciliation and the nation-to-nation relationship. On the contrary, this declaration promotes reconciliation by ensuring that Canada negotiates the demographic features of TTC on a timely basis which successive governments of Canada have failed to do.”
“The concept of self-government for First Nations holds great promise as it is embraced by Canada and First Nations,” Veale continued. “However, self-government financing must be negotiated in an honourable way to ensure First Nations survive and thrive. It also ensures that Canada and TTC continue their journey down the road to reconciliation.”
Veale wrote that he did not grant the majority of the other declarations sought by TTC “because they involve specific factors that cannot be taken into consideration individually or in isolation.”
The TTC’s current FTA extension expires March 31.
Contact Jackie Hong at firstname.lastname@example.org