Yukon case goes before Supreme Court

A landmark case about aboriginal rights and title in the Yukon which has drawn significant national attention will be before the Supreme Court of Canada on Thursday morning.

A landmark case about aboriginal rights and title in the Yukon which has drawn significant national attention will be before the Supreme Court of Canada on Thursday morning.

The case involves an agricultural lease that was given out by the Yukon government for 65 hectares of land north of Carmacks, in the area of a trapline belonging to Johnny Sam, a member of the Little Salmon-Carmacks First Nation.

The first nation and Sam challenged the authorization of the lease. They argued the Yukon government had a duty to consult with the first nation on matters within its traditional territory, but that it failed to fulfill that duty.

Yukon Supreme Court Justice Ron Veale agreed.

But three justices of the Yukon-B.C. Court of Appeal split Veale’s decision in two last year.

It agreed the Yukon government does have a responsibility to consult the first nation on matters within its traditional territory.

The court further ruled, however, that the Yukon government had fulfilled those responsibilities, and that it didn’t have to meet face-to-face with the trapper to do so.

Sam was aware of the application for an agricultural lease but essentially left the matters in the hands of the first nation to deal with, the three justices point out in their unanimous decision of August 2008.

The Yukon government appealed the Court of Appeal decision. It argues it does not need to consult with the first nation to issue a lease for 65 hectares of Crown land, because it has reached a land claim settlement with the first nation.

That settlement, a modern day treaty, sets out the different governing authorities over settlement and non-settlement land, and the Yukon need not go beyond the terms of the land claim agreement, the Yukon government argues.

The Little Salmon-Carmacks First Nation and the trapper, however, also appealed the Court of Appeal decision.

There is an inherent duty to consult on all matters affecting first nations, regardless of what is and is not contained in modern day treaties, the first nation and Sam argue.

Furthermore, they add, the Yukon government’s effort to consult in the agricultural lease did not meet the standard envisioned by the Supreme Court of Canada in previous decisions.

Each party will have one hour and 15 minutes to make their arguments to the justices of the Supreme Court.

There are also several intervening parties who will make submissions, but will be limited to 10 minutes each.

In general, the federal government is throwing its support behind the position of the Yukon government, as are Quebec and Newfoundland and Labrador.

The Kwanlin Dun First Nation, the Council of Yukon First Nations and several other aboriginal governing bodies, including the national Assembly of First Nations, are lining up behind the Little Salmon-Carmacks First Nation.

In all likelihood, the court will reserve its decision.

“The Council of Yukon First Nations is disappointed that the federal and territorial governments have chosen to resolve our differences in a courtroom rather than by way of engagement and discussions,” CYFN Grand Chief Andy Carvill said Monday.

“During the 25-year negotiating process, the parties resolved contentious land claim issues at the negotiation table. But now when difficult issues arise related to the implementation of those land claim agreements, the territorial and federal governments are unwilling to work co-operatively with us to resolve those issues. Instead, it seems that they prefer litigation and appeals.”

Carvill was travelling to Ottawa today to be in attendance at the hearing.