When it comes to negotiating with First Nations, the “honour of the Crown” is just as important as the letter of final agreements, according to an expert on aboriginal law.
“You don’t do away with things like the honour of the Crown,” said Ken Coates, a professor at the University of Saskatchewan.
Coates offered this in response to an opinion piece written by one of Yukon Premier Darrell Pasloski’s political advisors that appeared in the National Post last week, raising the eyebrows of the territory’s opposition leaders.
Yule Schmidt, who says the piece reflects her own views and not those of her employer, argues that land claim agreements were supposed to produce legal certainty, but have instead led to a deluge of lawsuits in the territory. She suggests recent court interpretations of the “honour of the Crown” have created unwieldy responsibilities for the Yukon government. She declined to be interviewed for this story.
Coates explained that, as he sees it, land claim agreements are complex living documents that require interpretation by an independent third party in order to settle disputes.
“What happens is that the legal environment changes as people bring cases forward,” he said.
“If aboriginal people win, then in fact the landscape changes. If a First Nation takes a case to court and they lose, then it changes in a different direction. It’s the very nature of the legal process.”
One commonly cited example is a 2004 case between the B.C. government and the Haida Nation over logging rights. The Supreme Court ruled that the honour of the Crown includes the requirement for governments to consult and accommodate affected First Nations, even if a land claims agreement has been settled for the area.
But Coates said those kinds of decisions are an important part of land claims.
“You can’t expect these very complicated legal arrangements to unfold without having debates and controversy,” and it’s the courts’ job to interpret them, he said.
“Governments tend to think, if you sign a land claims deal, everything will be resolved once and for all time. First Nations were very upset by that idea because they see treaties historically as more fluid, sort of on-going partnerships,” Coates said.
As more court decisions are piled on past ones, a body of precedent begins to emerge. But, until it is complete, the government’s duties can seem like a moving target, he said.
But that doesn’t mean the government can ignore court decisions it doesn’t like, he said.
“You don’t get the right to sort of pick and choose the parts of the law that you want, even though it’s very frustrating for a government to have to sort of adjust and adapt.”
The only way to avoid costly court cases, like the ones recently levelled by First Nations against the Yukon government over plans for the Peel watershed and the proposed Atlin Like campground, is to find a way to bring aggrieved parties back to the table.
“You will always need courts to resolve those tricky little situations where people always disagree,” said Coates. “But you also get to the point where the level of trust and confidence between levels of government basically gets sufficiently high that the conflict stops.”
While that may seem a long way off, given the current gulf between the First Nations and the Yukon government right now, it has been done before.
A look back through the decades reveals that Canada’s history is essentially one of various levels of government suing each other until the courts have built up enough precedents that the powers of each are well defined, Coates said.
“The wins First Nations have had are quite substantial. The increased wins are getting smaller and smaller because the big questions have already been decided,” Coates said.
“At a certain point, you have to start weighing the costs of a court battle against the possible benefits and it ceases to be financially viable to go forward with a court case. At that point, the court battles stop and real negotiation begins.”
Contact Jesse Winter at