Ross River’s land claim case heads back to court

The Court of Appeal for Yukon is sending a land claim dispute between the Ross River Dena Council and the federal government back to the Yukon Supreme Court for another trial.

The Court of Appeal for Yukon is sending a land claim dispute between the Ross River Dena Council and the federal government back to the Yukon Supreme Court for another trial.

The three-judge appeal panel ruled that Yukon Supreme Court Justice Leigh Gower erred when he tried to interpret what the government of Canada’s legislators were thinking when they signed an 1870 order that brought the land that would become the Yukon into Confederation.

In that order, the government promised to compensate the “Indian tribes” for “lands required for purposes of settlement.”

Ross River is one of three Yukon First Nations that have yet to sign a land claim, self-government or final agreement with Canada.

Negotiations got underway in 1996 and continued until June 2002, when the mandate for the Canadian government expired.

The First Nation rejected the government’s formal offer to settle the land claim. There have been no negotiations since.

The Ross Rover Dena Council brought suit against the federal government in 2005, arguing that the government had failed in its constitutional duty to settle land claims and provide compensation before land was opened up for settlement in its traditional territories.

During a two-week-long court case in November 2012, lawyers for Canada brought in Cambridge University Professor Paul McHugh who testified that the 1870 agreement should be read in the context of the time it was written.

They argued that Gower had to decide what the government of Canada was thinking when they signed the contract in 1870.

He sided with Ottawa.

“Accordingly, I agree with Canada that the relevant provision in the 1870 order cannot create an obligation to negotiate treaties and that Canada retains the discretion to decide if, when, and how to negotiate, as a matter of Crown prerogative,” wrote Gower in his original decision.

But the Appeal Court rejected that reasoning, calling it an example of “originalism,” or “the idea that the intentions of the drafters of constitutional documents forever govern their interpretation.”

“It is particularly dangerous to assume that a matter that was not intended to be the subject of adjudication by the courts in 1870 remains outside the supervision of the courts today,” wrote Justice Harvey Groberman. “The role of the courts in constitutional adjudication was completely unascertained at that time. Further, the Crown enjoyed near-complete immunity from judicial oversight in its fulfillment of obligations.”

In other words, although the government could not have been challenged in court in 1870, that is no longer the case.

Groberman noted that the case could “affect title to and rights over vast tracts of land in Yukon” and that “it was not appropriate to hive off the issue of the historical intentions of Parliament and of the British government leading up to the 1870 order.”

Contact Josh Kerr at

joshk@yukon-news.com

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

Just Posted

From Whitehorse to the Whitecaps

Joe Hanson is starting his second season with the Vancouver Whitecaps academy

Mount Lorne Mis-Adventure Trail Race doesn’t miss a step

Blue skies and sunshine for a chilly fall race

Canada Summer Games postponed

Yukon Canada Summer Games athletes will now work on mastering skills in preperation for 2022

Site selection for battery project draws ire of nearby landowners

Yukon Energy is accepting public comments on three possible sites for the project

Taking a closer look at the cosmos

Star gazing party scheduled for Sept. 18

Yukon government releases new guidelines for COVID-19 symptoms and sending children to school

The advice sorts symptoms into three categories: red, yellow and green

Nominations closed in Watson Lake byelection

Four candidates are running for mayor

Baggage screening changes begin

Passengers are asked to arrive earlier than normal in order to accommodate the new temporary system

Yukon Government extends education review

The final report is scheduled for release in March 2021

City hall, briefly

A look at decisions made by Whitehorse city council this week

Lawsuit against Freedom Trails settled

The suit was dismissed with consent of all parties

Tank farm takes another step towards development

OCP designation passes second reading

Climate change strategy targets 30 per cent reduction in territory greenhouse gases by 2030

The strategy includes rebates for electric vehicles but puts off mining targets for two years

Most Read