While Canada’s obligated to negotiate with the Teslin Tlingit Council (TTC) about funding, it’s not obligated to agree with it, federal lawyers argued in the Yukon Supreme Court Dec. 11.
The submission came on the second day of what’s expected to be a four-day-long hearing of a petition the TTC filed to the court last December. In it, the First Nation claims that it has been long underfunded, accusing Canada of failing to properly negotiate a financial transfer agreement (FTA) that aligns with principles set out in its self-government agreement.
Those principles include providing funding that allows TTC to provide comparable public services to its citizens, funding based on citizenship, not on the number of citizens with Indian status, and taking into account TTC’s specific capital and operational needs. The TTC is seeking a declaration from the court that Canada has failed or refused to negotiate in a way that respects those principles, despite having a legal obligation to do so.
In a brief opening statement, federal government lawyer Glen Jermyn emphasized that both Canada and the TTC have a mutual obligation to negotiate, and that negotiations are still ongoing.
There is “no evidence” to show that Canada has failed to act in good faith during negotiations, Jermyn said, and, if things truly weren’t going well, the 10 other self-governing Yukon First Nations would be in court too.
“Just because the process is frustrating and takes a long time doesn’t mean the other party is acting in bad faith,” Jermyn said.
Granting the TTC’s declarations would “create uncertainty and turmoil in the negotiation process,” Jermyn said, and have “far-reaching impacts” on not just negotiations with TTC, but with other self-governing First Nations as well.
In her submissions, Jermyn’s colleague, Eden Alexander, said that while the TTC’s self-government agreement places a “reciprocal obligation” on both Canada and the TTC to negotiate, there is no duty for Canada to agree with the TTC or conclude a FTA.
She reiterated that Canada still considers negotiations with TTC ongoing, pointing out that Canada accommodated TTC when it opted out of a “Group of Seven” collaborative negotiation between Canada and seven Yukon First Nations and requested to negotiate with Canada directly on its own.
Canada also took note of TTC’s August 2017 presentation to officials on its funding needs, Alexander said, sending questions about it back to the First Nation in the months following. The TTC had requested what would amount to nearly $300 million in additional funding over five years, she said, and Canada needs more details about the reasons for the significant increase as well as how much of it TTC wants the federal government to cover.
There are also larger, complex questions at play that are subject to negotiation, Alexander argued, such as defining what it really means to offer comparable services and how TTC determines its citizenship.
Lawyer Gregory McDade presented the TTC’s case earlier on Dec. 11 and throughout the day on Dec. 10, describing the matter as a “very important case” that addresses the First Nations’s long-standing funding problems.
“This concern we’re raising is not hypothetical,” McDade said. “It is real. It has been real for a number of years.”
McDade argued that since the TTC signed its self-government agreement, FTA negotiations and FTAs have never been compliant with the agreement’s principles. As a result, he said, the TTC has been chronically underfunded and unable to provide its citizens with programming and services comparable to those other Yukon citizens receive.
The lack of proper funding also “frustrates” the entire point of self-government, McDade said, because the TTC can’t afford to take over certain services and programs from the Yukon government.
While the TTC is encouraged by the language Canada is now using surrounding negotiations, that’s no longer enough, McDade said.
“Action matters. Words are nice but action matters,” he said.
Canada is expected to continue its submissions Dec. 12.
Contact Jackie Hong at firstname.lastname@example.org