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.”
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