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.

Just Posted

Lorraine Kuhn is seen with one of the many volleyball teams she coached. (Photo submitted by Sport Yukon)
The Yukon Sports Hall of Fame inducts the late Lorraine Kuhn

Lorraine Kuhn became the newest member of the Yukon Sports Hall of Fame for her work in growing volleyball amongst other sports

File Photo
A Yukon judge approved dangerous offender status for a man guilty of a string of assaults in 2020.
Yukon judge sentences dangerous offender to indefinite prison term

Herman Peter Thorn, 51, was given the sentence for 2020 assaults, history of violence

Crystal Schick/ Yukon News A former residential school in the Kaska Dena community of Lower Post will be demolished on June 21. Crystal Schick/ Yukon News
Lower Post residential school demolition postponed

On June 21, the old residential school in Lower Post will be demolished and new ground on a multi-cultural centre will be broken

Chief Medical Officer of Health Dr. Brendan Hanley announced 29 new COVID-19 cases on June 19 and community transmission among unvaccinated individuals. (Yukon News file)
Yukon logs record-high 29 new COVID-19 cases

F.H. Collins prom attendees and some Porter Creek Grade 9 students are instructed to self-isolate as community transmission sweeps through unvaccinated populations

Willow Brewster, a paramedic helping in the COVID-19 drive-thru testing centre, holds a swab used for the COVID-19 test moments before using it on Nov. 24. The Yukon government is reopening the drive-thru option on June 18. (Crystal Schick/Yukon News)
Drive-up COVID-19 testing opening June 18 in Whitehorse

The drive-up testing will be open from 6:30 p.m. to 9:30 p.m. everyday and increase testing capacity by 33 spots

Whitehorse City Hall (Yukon News file)
City news, briefly

A look at decisions made by Whitehorse city council at its June 14 meeting

Murray Arsenault sits in the drivers seat of his 1975 Bricklin SV1 in Whitehorse on June 16. (Stephanie Waddell/Yukon News)
Bringing the 1975 Bricklin north

Murray Arsenault remembers his dad’s Bricklin, while now driving his own

A presumptive COVID case was found at Seabridge Gold’s 3 Aces project. (file photo)
Presumptive COVID-19 case reported at mine in southeast Yukon

A rapid antigen rest found a presumptive COVID case on an incoming individual arriving at the 3Aces project

Jonathan Antoine/Cabin Radio
Flooding in Fort Simpson on May 8.
Fort Simpson asked for military help. Two people showed up.

FORT SIMPSON—Residents of a flooded Northwest Territories village expected a helping hand… Continue reading

A woman was rescued from the Pioneer Ridge Trail in Alaska on June 16. (Photo courtesy/AllTrails)
Alaska hiker chased off trail by bears flags down help

ANCHORAGE (AP)—An Alaska hiker who reported needing help following bear encounters on… Continue reading

Two participants cross the finish line at the City of Whitehorse Kids Triathlon on June 12 with Mayor Dan Curtis on hand to present medals. (Stephanie Waddell/Yukon News)
2021 Kids’ Triathlon draws 76 young athletes

Youth ages five to 14 swim, run and bike their way to finish line

NDP MP Mumilaaq Qaqqaq rises in the House of Commons, in Ottawa on May 13, 2021. THE CANADIAN PRESS/Adrian Wyld
‘Unacceptable’ that Inuk MP felt unsafe in House of Commons, Miller says

OTTAWA—It’s a “sad reflection” on Canada that an Inuk MP feels she’s… Continue reading

Lily Witten performs her Canadian Nationals beam routine on June 14. John Tonin/Yukon News
Three Yukon gymnasts break 20-year Nationals absence

Bianca Berko-Malvasio, Maude Molgat and Lily Witten competed at the Canadian Nationals – the first time in 20 years the Yukon’s been represented at the meet

Most Read