Cost is unclear for First Nation court fights

There's no question that court battles between the Yukon government and aggrieved First Nations can get expensive. But how much have recent cases cost, exactly? Territorial officials say they don't know.

There’s no question that court battles between the Yukon government and aggrieved First Nations can get expensive. But how much have recent cases cost, exactly?

Territorial officials say they don’t know.

The Yukon government is gearing up for the latest round of lawsuits. Two cases involve the territory’s plans for the Peel watershed, while the third centres on the possible Atlin Lake campground.

This raises the question of how much some of the prominent, recently completed court battles with First Nations have cost.

One case pitted the Ross River Dena Council against the government.

It was first ruled on in 2011 and focused on the government’s duty to consult with the First Nation when it comes to exploration work in the Ross River area.

The Yukon Court of Appeal later ruled consultation was required before a mining claim is granted or any work begins.

The government attempted to have its appeal heard by the Supreme Court of Canada, but that was denied in September 2013.

Another prominent case involved the Little Salmon Carmacks First Nation and the government. That one went all the way to Canada’s top court, and it also dealt with the duty to consult.

The final decision came out in 2010, but the case dates back years earlier.

A third important case was fought between the White River First Nation and the government.

Last year, a Yukon Supreme Court judge threw out a government decision approving a mining project south of Beaver Creek.

For each of these three cases, the News asked the government for two sums – the amount of money it spent and the amount it was ordered to pay in legal costs for the other side.

But, as it turns out, the government doesn’t track the time or resources spent on individual cases when its in-house lawyers and staff do the work.

“It’s not like a law firm where you’re billing,” said Dan Cable, a spokesperson for the Department of Justice.

Numbers were only available when the government hired Outside legal help.

For the Ross River case, $9,322 was spent on an Ottawa law firm specializing in Supreme Court of Canada applications.

The amount of legal costs the government owes the First Nation has not been worked out yet.

For the White River case, all the work was done in-house, so the government had no cost estimate for legal representation.

The government was ordered to pay $29,769 in legal costs. Additional costs are still being discussed.

In the final case, which went all the way to the Supreme Court of Canada, $215,631.32 was spent on Outside counsel.

The government was ordered to pay $29,800 in legal costs during the process.

In an interview this week, aboriginal expert Ken Coates estimated it costs about $1 million to take a case to the Supreme Court of Canada.

Government lawyers work in one of five areas of specialization – litigation, solicitors, legislative counsel, aboriginal law, and natural resources and environmental law. As you’d suspect, most of the court battles with First Nations are covered by the aboriginal law group.

There are 29 lawyer positions within legal services. Currently there are two vacancies, said Cable. There are 13 support staff.

“Some positions may be left vacant to allow for positions in other areas such as legislative counsel where there is a greater need within a specific group,” Cable said in an email yesterday.

The current, $6.18 million budget for legal services includes $147,000 for the aboriginal law group, he said. That group has the lowest funding of the five specializations.

A more clear cost is known for the territory’s court battle with the French language school board. The Department of Education has spent $2.6 million on its case so far. The board has said it plans to apply to be heard by the Supreme Court of Canada.

The department used Outside Francophone lawyers from the beginning, said Cable.

He said it’s unfair to suggest that, just because the government can’t provide a specific amount spent on specific cases, it is not being accountable.

The budget is debated in the legislature, and there are audited public accounts, he said.

“In addition, staff are accountable to their supervisor through their performance reviews. Further, all lawyers are accountable to the law society for their standards of practice,” he said.

Questions about whether or not internal staffing has increased as a result of the lawsuits in question could not be answered in time for today’s deadline.

The budget over the last three years has not changed significantly, Cable noted.

Justice Minister Mike Nixon had nothing to add to the department’s comments, he said through a spokesperson.

With files from Jesse Winter

Contact Ashley Joannou at

ashleyj@yukon-news.com

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