YTG wins Little Salmon/Carmacks land appeal

A controversial land dispute between Little Salmon/Carmacks and the Yukon government could be settled in the Supreme Court of Canada.

A controversial land dispute between Little Salmon/Carmacks and the Yukon government could be settled in the Supreme Court of Canada.

On Friday, the Yukon Court of Appeal found the territory properly consulted the First Nation about handing over land in traditional territory to a local farmer.

The 50-page judgment overturned a 2007 Yukon Supreme Court decision by Justice Ron Veale.

The territory failed its duty to consult the First Nation, said Veale, who quashed a 2004 decision to grant agricultural land to Larry Paulson.

There is interest among First Nation chiefs to test the latest decision in Canada’s highest court, said Council of Yukon First Nations grand chief Andy Carvill.

“One of the chiefs talked to me already and they said they were prepared to commit to assisting CYFN carry on to the Supreme Court of Canada,” said Carvill.

A fight to Supreme Court isn’t about vindication, he added.

“If the chiefs believe we need more clarity around this decision, then we will go all the way,” said Carvill.

CYFN would seek intervener status and assist Little Salmon/Carmacks if that First Nation decided to fight the appellant court decision.

Calls to Little Salmon/Carmacks Chief Eddie Skookum were not returned.

“In light of the low level of consultation required by the circumstances of this case, the duty to consult was met,” said the appeal court.

The decision was filed Friday.

Justice Pamela Kirkpatrick wrote the decision, which she made along with Justice Mary Newbury and Justice Dave Tugose.

“The duty to consult in this was triggered but was at the lower end of the spectrum and was met,” wrote Kirkpatrick.

“In a very real sense, success has been divided.”

The Yukon recognized a need for consultation, but not for extensive discussions.

“It’s clear there existed potential infringement of treaty rights, thereby triggering the duty to consult,” wrote Kirkpatrick.

Once the government’s duty to consult was established, disputes arose about how large in scope it was and if it was ever satisfied.

The government contended no treaty rights were at risk with the land transfer,  therefore consultation would be minimal, said the Court of Appeal.

The territory appealed Veale’s ruling in September 2007.

“The appellants courts ruling is a demonstration — it speaks for itself — that the government has in the past met its obligation of consultation and continues to do so,” said Premier Dennis Fentie in an interview Tuesday.

“All we were seeking is clarity. The ruling is being reviewed in its detail, (then) the Yukon government will move on.”

In November 2001, Paulson applied for land in order to grow hay, raise livestock, spot-harvest timber and build a barn, fences, storage facilities and corrals.

The agricultural lease overlapped elder Johnny Sam’s trapline.

Sam’s trapline concession was issued under the Wildlife Act to trap for commercial purposes, not subsistence ones.

His commercial interests “do not relate to the right to subsistence harvesting protected under the treaty,” wrote Kirkpatrick.

Settlement land under the Final Agreement was not affected, she added.

The area, located about 40 kilometres north of Carmacks near McGregor Creek, is near First Nation settlement lands.

Paulson’s application for 65 hectares is one-third of one per cent of Sam’s 2,143-hectare trapline (No. 143).

Consultation under the Final Agreement only applies to the parties involved — the Yukon and the First Nation — and not to individuals, like Johnny Sam, wrote Kirkpatrick.

Sam had deferred consultation to Little Salmon/Carmacks so there was no need to consult with him, she wrote.

The denial of consultation as a legal duty infected the territory’s approach to consultation, said Veale.

“There must be a dialogue on a government-to-government basis and not simply a courtesy consultation,” Veale wrote in his 44-page judgment.

The attack is unfair, wrote Kirkpatrick.

“The criticism leveled at Yukon was unwarranted,” she wrote.

CYFN legal counsel has suggested that the decision is a win for both sides.

Some clarity has been added to First Nations consultation, said Carvill.

“There is a duty for them to consult with First Nation whenever they are going to assign land to other parties within traditional territory,” he said.