Having to consult with First Nations on the sale of Crown land would be a “tremendous burden,” the Yukon government argued in court this week.
The territory was appealing the decision of Supreme Court Justice Ron Veale that favoured the Little Salmon/Carmacks First Nation.
“The duty to consult and, where appropriate, accommodate, was not met because the Yukon government never engaged the First Nation or Johnny Sam in direct consultation to address the First Nation’s rights in the final agreement,” concluded Supreme Court Justice Ron Veale in a decision handed down about one year ago.
That decision was unlawful, the territory claimed in its appeal.
This week, a packed courtroom heard the arguments of the territory, Little Salmon/Carmacks and several interveners in the precedent-setting case.
In 2004, the Yukon government granted Larry Paulsen 65 hectares of agricultural land 40 kilometres north of Carmacks.
The Yukon Party government did all the necessary consultation as required by the land claims agreement, said the territory’s lawyer.
Notice was sent to the First Nation, giving it the opportunity to prepare and present its views on the land sale.
The government then considered those views.
The land overlaps 0.5 per cent of trapline No. 143, owned by Little Salmon/Carmacks elder Johnny Sam.
The First Nation raised concerns about settlement land adjacent to the proposed agricultural lease and the possibility of archeological sites on the land.
A fish and wildlife management plan for the area was also being negotiated.
The plan should be completed before any land sales are made, argued Little Salmon/Carmacks.
The government promised compensation for the loss of the portion of Johnny Sam’s trapline.
The application was changed and a 30-metre buffer was created to protect a portion of the property where undiscovered heritage and archeological sites may have been located.
Government environmental assessments found there would not be a significant loss of wildlife habitat.
The Canadian government intervened in the appeal.
It challenged Veale’s ruling that there is a duty to consult directly with First Nations once a land claims agreement has been signed.
The court should only exist to see that the land claim processes themselves are reasonable, argued the federal government.
The reason the government has land planning and environmental assessments is to help it avoid having to negotiate on a case-by-case basis.
The agreement anticipates and requires that all parties follow Canadian law and cannot take away certain rights, argued Little Salmon/Carmacks lawyer Arthur Pape.
And the duty to consult is a constitutional right of First Nations.
The Crown argued it believed it could act unilaterally and only did the minimum amount of consultation as specified in the agreement, said Pape.
The government ignored requests to hold a meeting with Little Salmon/Carmacks to discuss the land issues.
While only half a per cent of the trapline is being taken up, Johnny Sam will not be allowed to shoot a firearm within one kilometre of Paulsen’s farm.
A firearm is needed to kill animals caught in traps and the trapline’s cabin is caught in this no-shooting zone.
Also, the government has considered the economic effects, but not the cultural significance of the trapline to the First Nation.
Johnny Sam grew up on the trapline and was using it to educate his grandchildren and other children from the community.
“No one asked why they’re so worried,” said Pape.
“There was no curiosity, no engagement and no inquiry — so there was no accommodation.”
If First Nations were told that the agreement contained all of their rights and nothing more, that would be the end of the negotiation process, Pape continued.
“It’s going to lead to a lot of First Nations saying that the treaty is not worth the paper it’s written on.”
Signing of a land claim agreement was equal to full reconciliation between the First Nation government and Canada, said the territory in its rebuttal to Pape’s argument.
Therefore there was no duty to consult.
It would be a “tremendous burden” to have to consult and accommodate the First Nations on each proposal.
“I don’t think that the obligation to consult and sometimes change plans or alter — or even give up plans sometimes — I don’t think that’s a terrible burden,” replied Pape after the case.
“That’s exactly what governs the First Nation and that’s what the agreement, it seems to me, promised everybody.”
Having to consult with First Nations would not cripple the Yukon’s ability to govern, he said.
“It’s hamstringing their ability to govern in a dishonourable way, and if they think that they have a right to govern in a dishonourable way then they’re dangerous and they’re not willing to pay attention to Canada’s Constitution and that’s not proper.
“That’s why we have courts, to sometimes tell governments that they’re going too far.”