Joel Krahn/Yukon News file The Andrew Philipsen Law Centre in Whitehorse.

Ross River Dena Council appeal set to be heard

Appeal judges are looking at a 2017 Yukon Supreme Court decision on Canada’s duty to negotiate

The Yukon Court of Appeal is set to hear arguments from the Ross River Dena Council (RRDC) and federal government today over a 2017 Yukon Supreme Court decision on Canada’s duty to negotiate with the First Nation.

It’s the latest chapter in a ongoing legal battle between RRDC and Canada over long-stalled land claim negotiations.

Ruling on a lawsuit originally filed by RRDC against the Attorney General of Canada in 2005, Yukon Supreme Court Justice Leigh Gower ruled in July 2017 that while historic documents obliged Canada to negotiate with “pre-existing Aboriginal societies,” and that Canada had failed to do so from at least 1969 to 1973, Canada’s modern-day negotiations with RRDC made up for that breach.

Gower declined to make several declarations requested by RRDC related to compensation and halting development on RRDC and Kaska traditional territory until a settlement is reached.

RRDC filed an appeal in November 2017.

In its factum filed to the appeal court earlier this year, the RRDC, represented by lawyer Stephen Walsh, argues that Gower erred on two grounds.

The first ground, RRDC argues, is that Gower wrongly determined that the Crown’s historic breach of obligation to negotiate land claims with Kaska Nation was “ameliorated” by its modern good-faith negotiations with RRDC.

RRDC is only one member of Kaska Nation, the factum argues, meaning that Canada’s liability for breaching the constitutional undertaking owed to Kaska Nation cannot be ameliorated by modern-day negotiations with just one First Nation. That obligation is owed to all Kaska, not just one First Nation, the RRDC argues, meaning Canada’s breach is ongoing.

The second ground is in relation to Gower’s interpretation of a provision in the 1870 Order, which brought what was then Rupert’s Land and the North-Western Territory into the union.

The provision states that “the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”

In his decision, Gower found the provision was intended to be a “moral, but not a legal, obligation.”

The RRDC argues that Gower’s “mistaken application of the law” allowed him to wrongly find that laws that opened up land for settlement before Kaska claims for compensation were settled were not inconsistent with the constitutionally-protected rights of the Kaska.

In its submissions, the federal government argues that Gower did not make any errors and that RRDC’s appeal should be dismissed.

Arguments are expected to last two and a half days.

Contact Jackie Hong at jackie.hong@yukon-news.com

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