Canadian courts are undermining the legal certainty that was to be created by aboriginal land claim settlements in the Yukon, says a study released by the Fraser Institute.

The study says the courts have to recognize that by weighing in on every challenge involving aboriginal rights, they increase uncertainty, and uncertainty breeds a loss of confidence among the investment community.

Annual surveys of mining and exploration companies by the institute clearly show companies are much more reluctant about investing the Yukon now than they were three years ago because of a couple of court cases, says the study released Thursday.

The study is titled Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence.

It refers specifically to a handful of Yukon court cases, including the case won by the Ross River Dena Council involving the duty to consult Ross River before allowing any mineral claims to be staked in the First Nation’s traditional territory.

It mentions the challenge of the Yukon government’s land use plan for the Peel River watershed, which was won initially by First Nations and environmental organizations and is now in the hands of Yukon Court of Appeal.

There’s a brief reference to the newest case, the pending challenge of Bill S-6, the federal legislation to amend the Yukon Environmental and Socio-economic Assessment Act which was passed in June.

All three cases happened in 2012 or after.

The study notes the general downturn in the mineral markets that has seen investment in the Yukon dry up since the recent peak in 2011.

But it also emphasizes the Fraser Institute’s annual survey of mining executives – which clearly indicates there’s been shrinking interest in the territory because of the uncertainty created by the legal challenges in the last three years.

The courts, the study suggested, should demonstrate a reluctance to interpret comprehensive land claim agreements that are negotiated by huge teams of negotiators at great costs.

The comprehensive agreements should be just that, comprehensive agreements that stand on their own, the study says. It says they should not be an open door to litigation.

The study cites the words of the Nunavut Court of Appeal from a case involving the 1993 Nunavut Land Claim Agreement. While the Court of Appeal did find the federal government breached the agreement, it also went on to say:

“Principles of interpretation cannot be taken so far that they compel the (government) to do more than what has been agreed to, nor to create new obligations that are not in the Land Claim Agreement,” the court wrote.

“A treaty is not an empty vessel to be filled up using interpretive principles with whatever covenants one of the parties or the court thinks....”

Because the negotiations of comprehensive agreements are so intense and costly, relying on the courts to ultimately interpret them will become a disincentive to negotiate them in the first place, the study suggests.

The interpretation of the “duty to consult” First Nations before governments undertake anything that might affect their aboriginal rights is a “significant source of ongoing uncertainty,” the study says.

A suggestion in the study is to have the courts provide a clearer definition of the duty to consult and by gradually implementing the law evolving around it.

“The Ross River Dena Council case from Yukon is an example of a dramatic shift in the doctrine that undermines, rather than bolsters, legal certainty in this area of law,” says the study.

(The Ross River Dena Council is one of three Yukon First Nations without a land claim agreement. As a result of the Ross River case, no mineral claims can be staked in the Ross River area until the parties have reached an agreement on how the territorial government can fulfill the duty to consult.)

The Fraser Institute’s study does point out the success of comprehensive land claim agreements does require the territorial and provincial governments to accept and fulfill their obligations set out in the agreements.

Grand Chief Ruth Massie of the Council of Yukon First Nations said this morning she has not yet had a chance to read the study, so she wasn’t in a position to comment on it specifically.

“It’s the government,” she said, speaking generally.

“If the governments would follow the spirit and intent of our agreements, we would not have to go to the courts. There are three parties to the agreements.

“I mean, we want development as much as anybody else, but we have rules and regulations called land claim agreements that we ourselves have to follow.”

The Fraser Institute is generally seen as a conservative think tank, though it declares itself to be a leading independent institute that does not accept government or corporate funding.

The study was authored by Malcolm Lavoie and Dwight Newman.

Lavoie is a visiting assistant law professor at the University of Alberta.

Newman is a law professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.