Ross River land claims ruling questioned

The chief of the Ross River Dena Council says he is disappointed in a Yukon Supreme Court decision this week.

The chief of the Ross River Dena Council says he is disappointed in a Yukon Supreme Court decision this week.

On Tuesday, Justice Leigh Gower ruled against the council, saying Canada is not legally bound to settle aboriginal land claims in the territory.

During the two-week trial in November, the Ross River Dena Council argued that Canada is obligated to negotiate a land claim and provide financial compensation for the years of access and use of lands because of a contract between England and Canada, called the 1870 Order.

This agreement granted much of Western Canada to the new federation, with the promise that it would settle all claims with the Hudson’s Bay Company and the “Indian tribes.”

Gower ruled that because it would be absurd for aboriginal groups to be able to sue the Canadian government under this order when it was signed in 1870, it can have no legal force in today’s courts.

“It is a Canadian court justifying the breach of an obligation made to our people by the Canadian government,” said Chief Jack Caesar in a news release Wednesday.

“Canada is hiding behind the skirts of the courts to justify yet one more broken promise to our people. We are convinced that an international court would rely on the 1870 Order and the UN declaration of indigenous rights, and require Yukon and Canada to deal with us honorably in a manner that respects our rights and the commitments made to us in return for access to our traditional lands.”

Gower’s decision and much of the entire case came off as “odd” to Gordon Christie, the director of First Nations legal studies at the University of British Columbia.

Everyone knows aboriginal groups in Canada had few legal rights up until the 1970s.

“Pretty much every legal action that aboriginal peoples launch today concedes that historically – during the colonial era – Canadian courts and governments did not recognize any ‘justiciable’ rights held by aboriginal peoples,” he said. “The courts today do not make that part of their analysis, however, since the whole point of modern jurisprudence is to try to respond to that flaw in the history of law and policy in Canada.”

But Christie does not foresee “extensive repercussions” from this decision on future land-claim and treaty negotiations in Western Canada, largely because so much of the debate centered on specifically understanding the 1870 Order “which is not the subject of most debate that revolves around contemporary negotiations and treaty-making,” he said.

Also, this was a trial judgment, Christie pointed out and so it may be appealed to a higher court.

In his release Wednesday, Caesar noted that he would consult with other leaders in the Kaska Nation before deciding on whether to file an appeal.

Contact Roxanne Stasyszyn at