A legal spat over a parcel of Yukon farmland could expand aboriginal rights across the country when land is used on traditional territory.
On Thursday, the Supreme Court of Canada heard arguments from the Yukon government and the Little Salmon/Carmacks First Nation over the extent of the government’s duty to consult when setting aside land for development.
The court’s decision, which isn’t expected for months, could determine the fate of modern land claims agreements, said Ken Coates, an academic who has worked on aboriginal politics.
The case centres on whether consultation clauses in land claims agreements are final, or whether courts can force more consultation based on legal decisions elsewhere in the country.
“The duty to consult is substantial,” said Coates. “It has sweeping implications in terms of the stages governments and corporations have to go through before development can happen on aboriginal land.”
In a sense, the case is merely an old legal regime – Little Salmon/Carmacks’ land claims agreement – catching up with new legal decisions that have expanded the government’s duty to consult with First Nations.
When Little Salmon/Carmacks’ land claims agreement was written in 1997, its duty-to-consult clauses were relatively narrow, said Coates.
But since then, a number of major cases have bestowed larger powers on First Nations and a wider imperative to consult with them on the part of governments.
These cases dealt with the Haida and the Taku First Nations, said Coates.
“These are the cases that opened up a fairly broad avenue and then they gained more and more teeth,” he said.
This is merely the law evolving in uncharted territory, he said.
“I don’t look at this case as any sign of horrible failure, but almost as an inevitable evolution of the land claims process,” he said. “What happens is First Nations test the law, and government tests the law, to see where the lines are.”
“This doesn’t necessarily mean there’s enormous rancor or acrimony.”
The case stems from an agricultural lease the Yukon government granted to Larry Paulsen, a resident of Carmacks.
The 65-hectare lot sits on Little Salmon/Carmacks traditional territory and the First Nations protested its exclusion from the decision to grant the lease.
In 2007, the Yukon Supreme Court sided with Little Salmon, saying a constitutional duty to consult did apply when a First Nation has a final agreement.
But the next year, the Yukon’s Court of Appeal took another look at it.
The appeal court split its decision.
“A constitutional duty to consult applies in the context of the Final Agreement,” wrote Madam Justice Kirkpatrick.
But the Yukon government did consult in this case, even if it was at “the lower end of the spectrum.”
Both sides appealed that decision and have been waiting to be heard in Ottawa for months.
The case will have massive implications in the Yukon, but across the country too, said Coates.
The decision will determine whether a court can order a government to consult after a land claims agreement has been signed.
“When you have an existing land claim, and if Little Salmon/Carmacks is successful, then it’s going to mean those treaties aren’t as final as we thought they were,” said Coates.
It will also increase First Nations’ power throughout Canada, he said.
“If you are in a process of negotiating, then the parameters will change because what you’ve done is given any aboriginal organization involved in this process much more substantial leverage than before.”
The case sparked a small protest outside the Yukon’s courthouse.
Several people held posters calling the Yukon government’s position “cultural genocide.”
Susan Davis, a former director of land and resources departments with Little Salmon, was heavily involved in the negotiations with the Yukon government.
“I was the one making the phone calls, I was the one writing the letters and, in my experience, they did not engage with us in a respectful manner and that’s why we took them to court in the first place,” said Davis, who was fired in 2006.
The government has taken advantage of the land claims agreement’s broad clauses, she said.
“Under the land claim, you’ve got the land-use planning chapters, you’ve got fish-and-wildlife chapters, and water chapters,” said Davis. “And in all those chapters, it tells you how you should be implementing this claim.”
But the Yukon government doesn’t use these forums in good faith, she said.
“From my experience, they did not consult,” said Davis. “They would not engage in any meetings. They would not engage in any discussions with us.”
Canada, Quebec, and Newfoundland and Labrador were supporting the Yukon government’s case.
Little Salmon has had several native groups intervening on its behalf from the Northwest Territories, Nunavut, British Columbia and Quebec.
The case could expand indigenous rights around the world, said Coates.
Internationally, aboriginal law cases heard in Canada’s Supreme Court are seen as the gold standard for indigenous rights.
“You folks don’t realize how many paths you’re blazing for people around the world,” said Coates.
These types of cases draw international attention from aboriginal groups in Australia, the Maori in New Zealand, the Sami people in Scandinavia and indigenous people in Siberia, “who are actually quite inspired by Canadian law,” said Coates.
“It does change what people think is possible and the legal framework,” he said.
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