A Yukon Supreme Court case could set a precedent in deciding the rights of Yukon First Nations beyond what’s laid out in their final agreements, said aboriginal rights lawyer Arthur Pape.
“This case is about whether there’s any restrictions or limits on what government can do, or whether it can do whatever it wants,” said Pape after the three-day hearing wrapped up Friday afternoon.
The case revolves around a 65-hectare chunk of land in Little Salmon/Carmacks First Nation’s traditional territory.
Last week, the First Nation was in court contesting a Yukon government decision to hand the land to farmer Larry Paulsen.
The First Nation asserts it was not consulted before the government approved the agricultural application.
The application could adversely affect a First Nation elder’s trapline, the surrounding environment and wildlife values and the First Nation as a whole, it claims.
Although the government’s decision does not directly breach any terms in the final agreement, it may affect rights or assets protected under the final agreement — such as trapping or hunting values, said Pape.
“(The government) shouldn’t use its authority in a way that’s going to undermine the rights and achievement and long-term future for the First Nations people,” said Pape after the hearing.
“The Constitution says that treaty rights are recognized and affirmed and that means the governments aren’t doing things that will undermine the treaty rights.”
During last week’s hearing, Crown lawyers argued the government had no duty to consult the First Nation because that duty was not spelled out in the final agreement.
But there’s also no clause in the agreement that gives government carte blanche to make decisions about issues affecting the First Nation without consulting the First Nation, argued Pape.
Final agreements are just one step in the process of ameliorating the relationship between the territory and First Nations’ governments.
“It’s called a final agreement, but that’s not because of its finality,” Pape told the court on Friday.
The treaty is called a ‘final’ agreement because it was the final draft after an agreement in principle, he explained.
“It’s not a finality agreement,” he said.
“There’s no way that any of these land-claim agreements can set out a detailed process or rules for the whole future of anybody’s traditional territory,” said Pape.
“The land-claim agreement is not a detailed code of conduct, it’s a set of broad rules and ways the government and the First Nations relate together.”
“This is a major case in the territory,” said Mayo-Tatchun MLA Eric Fairclough, who sat through the three-day trial.
“It could set a precedent for how government deals with First Nations in the future when selling off land in their traditional territory.”
First Nations view non-settlement lands as shared lands, said Fairclough.
“They’re Crown lands, but it doesn’t mean that the First Nation doesn’t have a say anymore.
“Particularly when it comes to aboriginal rights — the right to hunt and so on — if they’re slowly picking away at that it’s pretty major to First Nations.
“It’s about showing respect and doing proper consultation.”
Along with Fairclough, reps from Little Salmon-Carmacks and a few other Yukon First Nations sat in the courtroom to keep tabs on the case, which may influence their relationship with the territorial government.
It will take time to review the submissions and make a judgment on this complex case, Judge Ron Veale told the court on Friday afternoon.
The judgment should be drafted by June, he said.