A Yukon Supreme Court judge has ordered the federal government start negotiating with the Taku River Tlingit First Nation over its transboundary land claim in the Yukon.
The First Nation has 92 per cent of its land in B.C., and is based in Atlin. The remaining eight per cent is in Yukon.
Lawyers for both sides agree that Canada has a constitutional duty to negotiate land claims agreements, honourably and in good faith.
Canada officially agreed to begin negotiation of a transboundary agreement in Yukon in a letter dated Oct. 3, 1991 from the chief federal negotiator in Yukon.
The federal government’s argument boils down to “wait your turn.” Lawyers argued that negotiations around land in B.C. are happening honourably and in good faith and are going to be done first, followed by the Yukon land.
The First Nation disagrees, claiming Canada has not acting honourably when it comes to dealing with the Yukon land.
The Taku River Tlingit filed this lawsuit in 2014, after the Yukon government announced plans to build a campground on the First Nation’s land on the east shore of Atlin Lake, just north of the border with British Columbia.
In the face of the Yukon government’s pending development, Canada still wasn’t willing to negotiate a claim.
“While not an absolute outright refusal to negotiate, it is ‘not now’ in the face of the pending development of a culturally significant portion of the Taku River Tlingit claim that has not been granted to a Yukon First Nation,” said Yukon Supreme Court Justice Ron Veale.
“Whether it is ‘not now’ or ‘not until a final agreement is negotiated with British Columbia,’ it fundamentally ignores the earlier promises of Canada to negotiate without any reservation.”
Veale does not buy the federal government’s argument that it would simply be too complicated to try and negotiate over land that stretches across two jurisdictions.
“The fundamental objection I have to Canada’s submissions is that Canada created the boundary line that it now says is an impediment to negotiation, despite the fact that there are no real impediments to negotiating the Taku River Tlingit Yukon transboundary claim,” he said.
Veale points to an agreement following devolution dated Oct. 29, 2001, that says that the negotiation of the Taku River Transboundary Agreement remained “the highest priority.”
“I conclude that it is not honourable for Canada to agree to make negotiations ‘the highest priority’ in the face of a mandate that resulted in the transboundary negotiations being contingent on British Columbia reaching agreement,” Veale said.
“In my view, Canada is not negotiating honourably when it creates a mandate that completely negates its policies and express commitments.”
Veale does not provide specific instructions on what negotiations have to look like.
Plans for the disputed campground have been halted, at least for now. The campground is also the subject of another court case, between the Taku River Tlingit and the Yukon government, to be heard in court later this month.
The First Nation is claiming, in part, that the Yukon government didn’t consult enough on its plans for the campground. It also asks the court to grant the same considerations given to the Ross River Dena Council by the Yukon Court of Appeal.
That decision found that the government must consult and accommodate the First Nation before mining claims are staked and before exploration activities take place on its traditional territory.
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