No lawyer likes to hear the judge hypothetically rule against them.
Especially during the last chance to argue their case.
But that’s what happened to the Ross River Dena Council’s lawyer, Stephen Walsh.
Before Walsh began his closing argument on Wednesday, Justice Leigh Gower said if he ruled against the First Nation on the first question of the case, he would likely do the same for the second.
The first question is whether a document drafted 141 years ago has legal clout today.
That document, the 1870 Order, transferred the land that now makes up Canada, including the Yukon, from England. It promised that Canada would “consider and settle” aboriginal claims.
The second question is whether Canada still owes the Ross River Dena Council, which remains without a land claim agreement, any money.
Walsh, clearly taken aback, argued even if the order isn’t a legally binding contract today, Ottawa could still owe the Ross Rover Dena Council money.
That’s because it was a decision made by Parliament that became incorporated into the Constitution of Canada, so it has extra legal force.
And Canada has always had certain responsibilities to care for First Nations, Walsh argued.
The case Canada made is fairly summed up with testimony from Cambridge professor Paul McHugh, who took the stand for the Crown earlier this week.
When the 1870 Order was signed, it would have been absurd to think “Indians” could ever take the Canadian government to court, he said.
Much of his testimony and cross-examination led the court to flip through eight or so binders, ranging from two to eight inches thick, and debate what Canadian and English legislators were thinking back in 1870.
McHugh also pointed out that the order called on Canada “to consider and settle” the First Nations’ claims to compensation for land that Canada wanted to settle, primarily for farming.
“Consider” means Canada could weigh its options and decide whether or not to compensate the aboriginal groups, and deciding not to would “settle” the claim just as much as offering compensation would, he said.
During their closing arguments, Canada’s lawyers also argued that their responsibility to First Nations would only exist if the original document explicitly stated so, or recognized Ross River Dena Council’s specific claim.
The term “Indian groups,” was not specific enough, they said.
Before the seven-day trial ended, Walsh asked Gower to discount McHugh’s testimony. He challenged the professor’s impartiality and asserted his arguments are self-contradictory and ignore past court decisions.
Gower hopes to make his decision before Christmas.
Contact Roxanne Stasyszyn at