The Yukon should be paying attention to two recent Supreme Court of Canada decisions on aboriginal land rights, says Ken Coates, senior fellow with the Macdonald-Laurier Institute.
Canada’s top court has issued two big decisions in the past month on the extent of First Nation control over land and resources.
In the first decision, the Supreme Court of Canada declared that the Tsilhqot’in First Nation has aboriginal title to its traditional territory, a vast swath of central B.C.
The court reinforced the responsibility of governments to consult and accommodate on decisions related to that land.
But the more recent Grassy Narrows decision found that the Ontario government was justified in issuing a logging permit on that First Nation’s traditional territory despite objections.
The two decisions serve as useful “book ends” when considering the limits of aboriginal rights in Canada, said Coates.
“One decision says if the First Nations don’t have treaties, you better treat them as though they have treaties. You better make sure that you respect their rights to the land and resources and their rights to share in the benefits of any development.
“On the other hand, they do not have a veto over all development. The territories and provinces will have considerable sway and control and if the First Nation is unreasonable in demanding more consultation or not participating in consultation processes, then in fact the province or the territory can proceed with the development.”
Both the White River First Nation and the B.C.-based Kaska Dena Council have called the Yukon government back to the negotiating table in the wake of the Tsilhqot’in judgement, arguing their legal position has been reinforced and strengthened by the decision.
Dave Porter, chief negotiator for the Kaska Dena Council, told the News this month that pursuing claims through the courts could ultimately lead to all of southeast Yukon being declared Kaska title land.
But un-treatied First Nations should not expect to automatically be treated as an identical case to the Tsilhqot’in, said Coates.
“The Tsilhqot’in had a very, very special case in their very strong historic isolation from non-aboriginal people. They had one of the best cases anywhere in the country to make the argument for continued and exclusive Tsilhqot’in use of traditional lands. Most places have a much harder challenge getting over that bar.”
The Yukon government is currently reviewing the Tsilhqot’in decision and considering how it may impact relationships between the territory and First Nations, said Al Jones, policy director with Yukon’s aboriginal affairs group.
“It was obviously a significant decision,” he said.
But the Yukon government still considers the Umbrella Final Agreement, which is the foundation of the final agreements that 11 Yukon First Nations have signed, a relevant and attractive offer, he said.
‘The Yukon First Nation agreements are actually really impressive deals,” he said.
“I think the Yukon arrangement is one of the best in the world.”
But that doesn’t mean the interpretation of those agreements will not remain in question. Such is the case with the recent case heard in Yukon’s Supreme Court over the land use plan for the Peel watershed.
During the trial last week, counsel for the Yukon government argued that the most important thing is that the government consult with First Nations before implementing its land use plan on non-settlement lands.
But Thomas Berger argued on behalf of First Nations and environmental groups that the government is bound additionally by the land use planning process outlined in the Umbrella Final Agreement. The final plan must therefore follow from the planning commission’s work.
The Peel case is somewhat special in that it is not only First Nations but environmental groups and members of the public bringing the legal challenge forward, said Coates.
“It’s not just a First Nations issue. It’s environmentalists and other Yukoners who are opposed to the wilderness being opened up.”
Justice Ron Veale is expected to issue a decision in the coming months. It is very likely that he will pay special attention to the recent Supreme Court rulings in making his judgement.
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