Canada’s good intentions are nice but do not actually address the issues of years of chronic underfunding and improper financial negotiations, the lawyer representing the Teslin Tlingit Council (TTC) told the Yukon Supreme Court Dec. 12.
Lawyer Gregory McDade’s statements closed out the third and final day of a hearing on a petition the TTC filed to the court last December accusing Canada of failing to properly negotiate a financial transfer agreement (FTA) that aligns with principles set out in TTC’s 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 First Nation is seeking declarations from the court that Canada has failed or refused to negotiate in a way that respects the principles despite having a legal obligation to do so.
Canada has disputed that a legal obligation exists and also argued that negotiations with TTC are ongoing.
In his closing statement, federal government lawyer Glen Jermyn acknowledged that while negotiations can be difficult and time-consuming, there was “ample evidence” that negotiations with TTC are ongoing and at an advanced stage. He requested the court deny making the declarations.
Responding to Canada’s earlier arguments, McDade said that while it was nice that the federal government has created a draft policy stating the principles should be respected, it’s not a substitute for Canada’s legal obligation to negotiate a FTA in a way that adheres to them.
McDade also rejected Canada’s assertion that the TTC was asking for an endorsement of its negotiation position, saying that the real question before the court was whether the principles laid out in its self-government agreement are legally binding.
As well, McDade said there was an “inconsistency” in Canada’s position on the declarations, pointing out that at various times over the past three days, Jermyn and his colleague, Eden Alexander, had both argued that they would have a major impact on negotiations with other self-governing Yukon First Nations while also claiming the declarations would have no utility.
The granting of the declarations would have a far-reaching impact, McDade said, but one that would be positive for all Yukon First Nations.
Yukon Supreme Court Justice Ron Veale reserved his decision, but, in doing so, acknowledged that there was “some urgency” to the case and, as such, might deliver an oral decision with written reasonings later on.
The TTC and Canada last signed a FTA in 2010. The agreement is supposed to be renewed every five years, but, since 2015, the 2010 FTA has instead been extended, with the current extension scheduled to expire in March 2019.
Contact Jackie Hong at jackie.hong@yukon-news.com