Whitehorse Daily Star

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WHAT CANADA LOOKED LIKE – The ownership of the North-Western Territory including the Yukon and Rupertʼs Land was transferred to Canada from England in 1870, three years after Canada was created on July 1, 1867. The Ross River Dena Council says Canada had a legal obligation to address the aboriginal interests of the Ross River Kaska before making any of their traditional lands available to settlers. Canada says no legal obligation existed. Map created by STAR STAFF

Request to court lacks foundation: lawyer

The Ross River Dena Council is asking the Yukon Supreme Court to make a case out of something that doesn’t exist, says federal lawyer Suzanne Duncan.

By Chuck Tobin on September 18, 2014

The Ross River Dena Council is asking the Yukon Supreme Court to make a case out of something that doesn’t exist, says federal lawyer Suzanne Duncan.

Duncan says when England transferred ownership of the Yukon to Canada as part of the North-Western Territory on July 15, 1870, Canada simply made a promise to be a good guardian of the aboriginal interests in the new lands.

There was no intention to commit the country to a constitutional obligation to negotiate the surrender of those aboriginal interests before allowing settlers access to traditional aboriginal lands, she told Justice Leigh Gower Wednesday.

She said when Canada promised to be a good guardian, it was simply assuring England it would settle the interest of the First Nations with the same equitable principles England had used in the previous 100 years of colonialism.

There was a commitment there, but it didn’t mean what Ross River wants it to mean, she said as she began her closing arguments on day nine of Ross River’s lawsuit against the federal government.

“It was not meant to form a legal obligation, it was meant to indicate how Canada would carry on as England had in the past.”

Duncan said it would be utterly unfair to the forefathers of the day to sit back today and say they had a legal obligation, and they failed to fulfill it.

It would be unfair to the House of Commons and the Senate which made the promise, and it would be unfair to the authors of the passage, because they never intended to create a legal obligation, she insisted.

Not only would it be unfair, said Duncan, it would also go against the wisdom Canadian courts have applied when considering constitutional law and historic constitutional documents.

She said the high courts, including the Supreme Court of Canada, have recognized provincial and territorial governments must be liberal and generous when interpreting the Constutition of Canada.

They’ve found generous interpretation is required to address the circumstances of an evolving society, just as the high court did in 1930 when it found women did meet the criteria of being “qualified persons,” and therefore could sit in the Senate, she said.

The same generous interpretation, suggested Duncan, was applied by the Supreme Court of Canada when it extended protection to same-sex marriages, under the Constitution’s definition of marriage.

When it comes to interpreting historical documents, on the other hand, the courts have said the interpretation must be both generous but rigid at the same time, so that there is no deviation from the original intent of the document.

“You can’t shift the purpose because that would amplify it too much, and take it too far away from what it means,” she told the judge.

There was no intent to create a legal obligation in the 1870 Order, argued Duncan, who called two expert historians over the last two weeks to support Canada’s position.

Ross River is arguing a legal obligation was created, that it’s right there in black and white, and the obligation remains outstanding.

The First Nation is asking the court for an order that Canada compensate Ross River for all of its traditional lands and resources Ottawa made available to others without first settling the interests of Ross River.

It’s asking the court for a declaration freezing the Yukon government’s authority to issue any more land grants, leases or licences inside its traditional territory until the claims of the Ross River Kaska have been settled.

Ross River lawyer Stephen Walsh spent a day and a half making his closing arguments before Duncan began her submissions Wednesday afternoon.

Ross River lost the first trial in 2011 when Judge Gower agreed with the expert testimony back then that the 1870 Order was not meant to create a legal obligation to address aboriginal interests before making lands available to settlers.

On appeal, the Yukon Court of Appeal found a fundamental flaw in the first trial, and sent the matter back to the Yukon Supreme Court for a new trial.

In question is the interpretation of the passage included in the 1870 Order, which forms part of the Consitution of Canada. It says:

“... That, upon transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”

Duncan continued her closing arguments this morning, and was expected to go into this afternoon as well.

There was, she repeated, no legal obligation ever intended or created.

Justice Gower, however, asked what he is to take from the fact that following the transfer of land in 1870, the federal government began negotiating treaties with the aboriginal people.

As settlers pushed westward for agricultural land, as the railroad moved westward, Canada entered into treaties with the aboriginal people of those lands.

Why then, the judge pondered, did Canada not enter into treaties with the Yukon’s First Nations at the time of the Klondike Gold Rush stampede?

Duncan told Gower Canada has always retained the right to choose how to address aboriginal interests, whether to enter into treaties, create Indian reserves, set land aside for the First Nations, provide health and education benefits and so on.

In 1973, following the historic aboriginal rights decision by the Supreme Court of Canada, Canada chose to develop a comprehensive claims policy to negotiate modern day land claim agreements, she pointed out.

Duncan said the courts have never said how Canada must address aboriginal interests.

They have ruled on whether Canada did its honourable best in implementing a particular method of addressing aboriginal interests, but never have they said what method Canada must use to address those interests, she said.

Duncan suggested at the time of the Gold Rush, Canada did not see the arrival of the non-aboriginal population as being of great significance or impact, and expected the rush would be short-lived.

At the time, she said, the Yukon’s aboriginal people were largely doing what they had always done.

They were continuing to live their subsistence lifestyle, hunting and trapping, Duncan told Gower.

She said Canada’s approach to address aboriginal interests in the Yukon at the time was to do nothing, to leave the aboriginal people to their way of life, to leave well enough alone.

Even if the court finds the 1870 Order did somehow create a legal obligation, the federal government has fufilled its duty to recognize and address the interests of Ross River through its relationship with the First Nation for the last 100 years.

It did attempt to negotiate a modern day land claim agreement under the comprehensive claims policy it developed after the 1973 high court decision, she said.

Duncan said addressing aboriginal interests comes in many forms. It’s not a matter of simply signing a document that says “you get this and we get that.

“It is a constant balancing and weighing the legitimate interests of both sides,” she said. “I would suggest Ross River does not take that approach, theirs is very one-sided.”

Ross River, she said, would have the courts impose the modern day understanding of aboriginal rights and title on the authors and supporters of the 1870 Order that paved the way for the land transfer.

Not fair, she insisted.

Duncan said even today, the meaning of aboriginal rights and title is still being defined by the courts. It wasn’t until the 1973 Calder decision that the highest court in the country provided its view, she said.

Duncan said to expect those rights described in 1973 and the years afterwards were on the minds of those who drafted and implemented the 1870 Order is not realistic.

Those involved over 100 years ago did what they did because they felt they were doing the right thing, what was expected of them, she said.

The judge acknowledged the evolving nature of aboriginal law, rights and title.

But he also suggested those aboriginal rights and title had to grow out of something, the seed had to have been planted long before 1973.

Perhaps the seed is found in the 1870 Order, Gower suggested to Duncan.

Both Duncan and Walsh have provided the judge stacks of Canadian legal decisions to support their positions.

The case is scheduled to wrap up Friday.

In the first trial, Gower took more than two months to consider and write his decision.

Comments (2)

Up 2 Down 1

Interesting Map Above this piece/crazy though on Sep 20, 2014 at 1:49 pm

I find the map with this quite different with Alaska (Russia) listed. We all know that the US purchased Alaska from Russia. Seeing that Russia leaders of today did not respect the decision of their leaders decision in the 1950's to give part of the Ukraine to the Ukraine and just walk in and take part of the Ukrainian back and are trying to take other parts of Ukraine. What is stopping the leaders from taking back Alaska other than US power in the world. The point I am making is we need to look at all opportunities to build our wealth for our own protection in the world. Canadian natural resources is going to become more valuable to the world needs.

Up 15 Down 4

Fairness and Reasonableness is key. No court involvment on Sep 19, 2014 at 12:08 pm

The courts should not be making public policy or enforcing it. It is the elected people that have that responsibility. The courts should refuse to hear these cases and refer them to the elected government as land claims was settled. Second there has to be balance and fairness not one side-it . Some First Nation methods of settling their issues through the courts will not work because then the elected officials will have to develop new laws to protect all the peoples interest. We all have the right to use the land equally.

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