First Nations are calling the governments of Yukon and Canada back to the negotiating table after a landmark Supreme Court decision establishing aboriginal title in parts of B.C.
Dave Porter, chief negotiator for the Kaska Dena Council, called the Tsilhqot’in decision “one of the most significant legal decisions rendered on aboriginal jurisprudence in this country’s history.”
In the decision the Supreme Court of Canada declared that the Tsilhqot’in First Nation has aboriginal title to its traditional territory. That has reinforced the responsibility of governments to consult and accommodate on decisions related to that land.
“Their aboriginal rights to their traditional territories have been confirmed,” wrote Ken Coates, senior fellow with the Macdonald-Laurier Institute, in a recent Troy Media column.
“The basis for negotiations in British Columbia and elsewhere has shifted. First Nations have more legal authority than in the past and, like anyone else in a similar situation, they will use it to their benefit.”
That’s what the Kaska Dena Council hope to do, too.
The council represents three B.C.-based First Nations. Kaska traditional territory covers large swaths of southeast Yukon and northern B.C. as well as parts of the Northwest Territories.
“If the Kaska continue to litigate, at the end of that process, there may very well be a declaration that the southeast Yukon is Kaska aboriginal title land,” said Porter.
But the council would prefer to get what it wants outside of the courts, he said.
“We’re not keen on decades more of litigation. We see this as an opportunity for the parties to make best efforts to establish a negotiating table to resolve these issues. And I think that’s the way to go.”
Un-treatied First Nations with territory in the Yukon have a unique legal argument that compels the Government of Canada to return to the negotiating table, said Porter.
A 1870 order compels the federal government to establish treaties before taking up the land for the purpose of settlement.
Much of Canada is already covered by historical and modern treaties.
B.C., where much of the land is still not covered by treaty, had not yet joined Confederation in 1870.
The Canadian government is therefore uniquely compelled to deal with the outstanding claims of the Kaska Dena Council and other groups with territory in the Yukon, said Porter.
The White River First Nation is one of those other groups that is in a parallel situation.
It has also called on the Yukon to come back to the negotiating table in the wake of the Tsilhqot’in decision.
“We look at it as a huge victory for all First Nation people, but in our current situation we see it as critical,” said Janet Vander Meer, the First Nation’s chief negotiator. “It’s a critical time for particularly the Yukon government to recognize and respect where we’re at.”
White River is one of three Yukon-based First Nations that has not signed a final agreement with governments of Canada and Yukon.
Now more than ever it’s clear that was the right decision, she said.
“The offerings from the government to sign on were so pathetic that I’m pleased that our nation at that time chose not to sign.”
With the Supreme Court decision the First Nation is in an even better position to negotiate for rights to its traditional territory, said Vander Meer.
While the First Nation is not interested in a treaty in the style of the Umbrella Final Agreement that others have signed on to, there are other agreements that would bring certainty to governments and industry, she said.
The issue that White River and other unsigned First Nations have with the UFA is that it requires First Nations to give up claims to aboriginal title across the vast majority of traditional territories in exchange for rights to a smaller parcel.
In B.C. there are examples of framework documents that set out consultation responsibilities and structures for decision-making on land issues without relinquishing claims to aboriginal title, said Vander Meer.
“What we’re saying, and what we’ve said for three solid years, is let’s have a good solid base document. It will not be a UFA treaty. But it will encompass all of the consultation requirements that they have to go through, our expectations as a First Nation, so that we can go through this stuff. We don’t want to stall everything. We want to work more on a equal footing with YG, and I think for many years now that YG has been fumbling the ball on this.”
The White River First Nation recently signed an agreement with Gorilla Minerals Corp. for Class 1 exploration at its Wels gold and nickel property in western Yukon.
The First Nation is very pleased that the company had the foresight to come to them even at the earliest stage of exploration, said Vander Meer.
It’s the first time, to her knowledge, that a First Nation has signed an agreement regarding Class 1 work, she said.
The agreement shows attention to the duty to consult established by the Tsilhqot’in case and in the 2012 Ross River appeals court decision, she said.
“Good business is respecting the communities in which you operate,” wrote Scott Sheldon, president of Gorilla Minerals, in an email to the News. “The agreement is an important starting point to our relationship. It ensures transparency and creates a foundation of trust.”
Contact Jacqueline Ronson at