Teslin Tlingit Council’s lawsuit against Canada over federal funding set to be heard in court starting Dec. 1. (Crystal Schick/Yukon News file)

Teslin Tlingit Council lawsuit over federal funding to be heard in court next week

The First Nation’s lawyers will argue that Canada has failed or refused to negotiate properly

Lawyers for the Teslin Tlingit Council (TTC) are scheduled to argue Monday that Canada has refused or failed to properly negotiate a new federal funding agreement with the First Nation for years.

And that, they will argue, is not only breaking the law, but also having a detrimental impact on the TTC’s ability to function as a government and effectively serve its citizens.

The TTC sued the Attorney General of Canada in December 2017, filing a petition to the Yukon Supreme Court seeking declarations that the federal government is obligated but has not been willing to negotiate a new funding transfer agreement (FTA) for the First Nation in a way that abides by the principles laid out in the TTC’s final and self-government agreements.

Those principles include giving TTC enough resources to provide public services for its citizens at a level comparable to other places in the Yukon, taking into account TTC’s specific capital and operational needs, and basing funding on citizenship, not Indian status.

In its reply earlier this year, the federal government called the TTC’s petition “premature and unnecessary.”

The TTC filed an outline of arguments to court Dec. 4.

Like the petition, the document highlights the fact that the TTC has been on the same FTA since 2010, with a few “minor” changes that it says have not addressed the underlying issue of chronic underfunding.

FTAs, the outline explains, are of “central importance” to the TTC and make up 70 to 75 per cent of its annual revenue. They’re meant to be renewed every five years, but the TTC agreed to an extension of the 2010 FTA in both 2017 and 2018 “under the duress in the sense that no funding was otherwise available.”

It also appears likely that the TTC will be forced to accept another extension in 2019 for the same reason, the outline says.

“TTC has clearly advised Canada well in advance that it did not wish to delay negotiation of a new FTA,” the outline reads.

“Canada failed to make any offer of a new FTA at all.”

Besides the filing on the petition, Canada has had plenty of notice that the TTC’s current and previous FTAs are inadequate, the outline says: joint reviews over the past decade have identified issues including inadequate funding for programs and services, infrastructure and housing shortfalls, and funding being tied to Indian status instead of citizenship. According to the document, about 25 per cent of TTC’s roughly 800 citizens do not have status.

However, those problems weren’t addressed during the negotiation of the 2010 FTA.

“Instead, Canada advised TTC that they had no mandate to update the FTA and would only agree to an adjustment to governance funding,” the outline says.

“…TTC remains subject to and receives funding under an FTA and extensions that are not built on proper foundations.”

Canada, the outline says, appears to be under the impression that abiding by the principles laid out in the TTC’s final and self-government agreements is a moral obligation but not a legal one, something the TTC strongly disputes.

“TTC made enormous sacrifices, including conditionally ceding aboriginal title to 90 per cent of its Yukon territory, in order to enter into the Final Agreement and Self-Government Agreement,” the outline says.

“TTC did so on the understanding that their rights and self-government would be truly recognized and supported by the Crown.”

“Modern treaties are contracts, albeit of a unique and solemn nature,” the outline says later on. “They impose binding obligations on their signatories, but they are also imbued with the honour of the Crown, and are not to be treated as ‘everyday commercial contracts.’”

TTC is seeking six declarations from the court related to what it says is Canada’s legal obligation to negotiate towards a new FTA in accordance with it agreements, as well as legal costs.

“As a result of Canada’s failures, TTC has throughout been subject to an inadequate and unprincipled FTA, that has been repeatedly extended and remains in effect, with no genuine alternative,” the outline says.

“TTC’s rights under the Final and Self-Government Agreement have been and continued to be breached… Resolution of this dispute and the Court’s guidance as to the governing legal framework will bring clarity and will allow for the completion of FTA renewal negotiations.”

The hearing of TTC’s petition is expected to take four days.

Contact Jackie Hong at jackie.hong@yukon-news.com

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