Negotiations never end under land claims: Coates

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.

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

jessew@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Wyatt's World for Oct. 28, 2020.
WYATT’S WORLD

Wyatt’s World for Oct. 28.… Continue reading

Yukon Child Care Board chair Amy Ryder says the board could be playing a bigger role in childcare policy making if they had more financial support from the Yukon government. (Submitted)
Yukon Child Care Board asks for larger role in annual report

The board is asking for a larger budget to increase outreach and advice

Yukon’s clocks will no longer change in March and November but will remain permanently on Pacific Daylight Saving Time. (Courtesy Yukon government)
Off the clock: Yukon prepares to end seasonal time changes

Starting on Nov. 1 Yukon will be one hour ahead of Vancouver and two hours ahead of Alaska

Dawson City as scene from West Dawson. Art Webster, the vice-chair of the Dawson Regional Planning Commission resigned last month over the Yukon governments unwillingness to pause speculative staking. (Joel Krahn/Yukon News file)
Vice-chair resigns from Dawson land-use planning commission

NDP warns that not pausing mining activity is the road to a second Peel decision

The opening ceremonies of the Canada Summer Games in Winnipeg on July 28, 2017. The 2021 Canada Summer Games have officially been rescheduled for Aug. 6 to 21, 2022, exactly one year from the date the national competition was originally set to take place in the Niagara region of Ontario. (Canada Summer Games/Flickr)
Canada Summer Games dates set for 2022 but uncertainty remains for Yukon athletes

Yukon athletes continue waiting to get back into schools

A proposed Official Community Plan amendment would designate a 56.3 hectare piece of land in Whistle Bend currently designated as green space, as urban residential use. Whitehorse city council passed first reading on a bylaw for the designation change at its Oct. 26 meeting, prompting an upcoming public hearing on Nov. 23 ahead of second reading on Dec. 7. (Courtesy City of Whitehorse)
Local contractors will be given an advantage on a contract for the design and construction services that will see a new reception building at Robert Service Campground decided city councillors during the Oct. 26 council meeting. (Crystal Schick/Yukon News file)
Local firms will get advantage on contract for new Robert Service Campground building

Yukon-based companies competing for contract for new reception building will receive 20 extra points

Fallen trees due to strong winds are seen leaning on to power lines which caused some power outages around the territory on Oct. 26. (Courtesy of ATCO)
Wind knocks out power around the Yukon

High winds on Oct. 26 knocked out power to Faro, parts of Whitehorse and beyond

The Yukon government is asking for all claims in a lawsuit over the Takhini elk herd be struck by the court. (Mike Thomas/Yukon News file)
Yukon government asks for Takhini elk lawsuit to be struck

The Yukon government is asking for all claims in a lawsuit over… Continue reading

The Yukon government has filed a reply to an outfitter’s petition challenging the reduction of its caribou quota to zero. (Yukon News file)
YG replies to outfitter’s legal challenge over caribou quota

The Yukon government has filed a reply to an outfitter’s petition challenging… Continue reading

The Yukon government is encouraging people to get the flu vaccine this year, saying that with COVID-19, it’s “more important than ever.” (Black Press file)
Get flu vaccine, Yukon government urges

The Yukon government is encouraging people to get the flu vaccine this… Continue reading

Benjamin Munn, 12, watches the HPV vaccine in 2013. Beginning Jan. 1, 2021, the Human Papillomavirus (HPV) vaccine will be available to all Yukoners up to, and including, age 26. Currently the program is only available to girls ages nine to 18 and boys ages nine to 14. (Dan Bates/Black Press file)
HPV vaccine will be available to Yukoners up to, including, age 26

Beginning Jan. 1, 2021, the Human Papillomavirus (HPV) vaccine will be available… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Most Read