ROSS RIVER DENA COUNCIL PLAINTIFF v. THE ATTORNEY GENERAL OF CANADA, 2017 YKSC 59

SUPREME COURT OF YUKON Citation: Ross River Dena Council v. Canada (Attorney General) , 2017 YKSC 59 Date: 20171023 S.C. No. 06-A0092 Registry: Whitehorse BETWEEN: ROSS RIVER DENA COUNCIL PLAINTIFF AND THE ATTORNEY GENERAL OF CANADA DEFENDANT Before Mr. Justice L.F. Gower Appearances: Stephen Walsh and Claire Anderson Counsel for the Plaintiff Suzanne M. Duncan and Geneviève Chabot Counsel for the Defendant REASONS FOR JUDGMENT TABLE OF CONTENTS TABLE OF CONTENTS .. 2 1. INTRODUCTION .. 5 2. PROCEDURAL BACKGROUND .. 6 3.

ISSUES .. 15 4.0 ANALYSIS .. 19 4.1 Issue #1: Has Canada, since 1973, failed to take reasonable, or any, steps to protect the claimed Aboriginal title of RRDC? If so, is such conduct inconsistent with the honour of the Crown? . 19 4.2 Issue #2: Has Canada, since 1973, ignored the fact that until the relevant provision in the 1870 Order is complied with, he lands in question are “lands reserved for the Indians” within the meaning of s. 91(24) of the Constitution Act, 1867 ? If

so, is such conduct inconsistent with the honour of the Crown? . 22 4.3 Issue #3: Has Canada, since 1973, failed to take reasonable steps to prevent the disposition of interests in land and resources within RRDC’s traditional territory to third parties? If so, is such conduct inconsistent with the honour of the Crown? . 22 4.4 Issue #4: Has Canada generally failed to honour the Kaska Framework Agreement, dated September 21, 1989 (“KFA”), in particular paras. 4 and 12 of that Agreement?

If so, is such conduct inconsistent with the honour of the Crown? . 22 4.5 Issue #5: Has Canada insisted on the Umbrella Final Agreement dated May 29, 1993 (“UFA”) as the only basis for negotiation of RRDC’s (and other Kaska’

s) claims to its traditional territory and refused to negotiate on any other basis?

If so, is such conduct inconsistent with the honour of the Crown? . 25 4.6 Issue #6: Has Canada negotiated in bad faith by insisting that the UFA be the basis for any negotiations with RRDC, despite the fact that it has not shown that the UFA has ever been validly ratified in accordance with s. 3.5 and other relevant terms of the 1989 Agreement in Principle between the Government of Canada, the Council for Yukon Indians and the Government of Yukon (the “1989 AIP”), and s. 2.2.8 of the UFA? . 31 4.7 Issue #7: Have Canada’s representatives knowingly (or with reckless indifference) procured and relied upon a series of conflicting and false affidavits with respect to the alleged ratification of the UFA?

If so, is such conduct inconsistent with the honour of the Crown? . 56 4.8 Issue #8: Has Canada failed or refused to agree, after June 2002, to resume negotiations with RRDC, despite requests from RRDC that Canada do so and proposals from RRDC for the resumption of negotiations?

If so, is such conduct inconsistent with the honour of the Crown? . 68 4.8.1 Abandonment of Negotiations . 70 4.8.2 Failure or Refusal to Resume Negotiations . 82 4.9 Issue #9: Was Canada’s conduct inconsistent with the honour of the Crown when it devolved administration and control over the lands in question to the Yukon Territorial Government, over the objections of the Kaska and without first considering and settling the plaintiff’s claims to compensation for lands required for purposes of settlement? . 96 4.10 Issue #10: Has Canada allowed the moratorium on the collection of income taxes that had applied to RRDC members in respect of income earned on Land Set Aside to expire?

If so, is such conduct inconsistent with the honour of the Crown? . 107 4.11 Issue #11: Has Canada refused, and does it continue to refuse, to take the steps necessary to convert RRDC’s Land Set Aside to reserve lands within the meaning of the Indian Act ? If so, is such conduct inconsistent with the honour of the Crown? 107 4.12 Issue #12: Has Canada refused requests to implement the published policy on the implementation of the inherent right of self-government in respect of RRDC?

If so, is such conduct inconsistent with the honour of the Crown? . 108 4.13 Issue #13: Has Canada refused or failed to take the necessary steps to honour and/or implement the United Nations Declaration on the Rights of Indigenous Peoples (“ UNDRIP ”) (and in particular

Article 26 thereof) in respect of RRDC’s Aboriginal title and rights in and to the lands in question? If so, is such conduct inconsistent with the honour of the Crown? . 110

4.14 Issue #14: Has Canada failed to take any steps to implement the terms of ss. 49 and 50 of the Yukon Act in respect of RRDC’s unsettled claims in and to the Kaska traditional territory in the Yukon?

If so, is such conduct inconsistent with the honour of the Crown? . 115 4.15 Issue #15: Which party bears the onus of proof in this action to establish that the Crown did not negotiate in good faith? . 116 4.16 Issue #16: What, if anything, does RRDC have to establish with respect to its prior use and occupation of the lands that have been opened up for settlement in the Kaska traditional territory? . 121 4.17 Issue #17: Is there any basis in this case for the application of the principles relating to s. 35(1) of the Constitution Act, 1982? . 128 4.18 Issue #18: Was the legislation passed after the 1870 Order purporting to open the Kaska traditional territory up for settlement null and void? . 129 5.

CONCLUSION .. 129 1. INTRODUCTION [ 1 ] The plaintiff, Ross River Dena Council (“RRDC”), is a “band” within the meaning of the Indian Act [1] and its headquarters are located in the community of Ross River, Yukon. RRDC and its members are part of the Kaska tribe of Indians, also known as the Kaska Nation. There are five discrete First Nations within the broader Kaska Nation, including three in British Columbia and two in the Yukon.

RRDC has been acknowledged by the defendant, Attorney General of Canada (“Canada”), as the authorized representative of its members in respect of their comprehensive land claims in and to the Kaska traditional territory in the Yukon. This traditional territory is also claimed by Liard First Nation, the other Kaska First Nation in the Yukon, which has similarly been involved in the comprehensive land claims process with Canada and Yukon.

The whole of the traditional territory claimed by the Kaska includes what is now the south- eastern part of the Yukon, as well as adjacent lands in the Northwest Territories and north-eastern British Columbia. The Kaska traditional territory in the Yukon comprises about 110,000 square kilometres and constitutes approximately 23% of the Yukon. The claims referred to in this action by RRDC are only in respect of the Kaska’s claimed traditional territory in the Yukon (“the Kaska traditional territory”). [ 2 ] In 2005, RRDC commenced an action against Canada to decide the modern-day

interpretation of a provision in the Rupert’s Land and North-Western Territory Order [2] (the “ 1870 Order ”), which is part of the Constitution of Canada. The 1870 Order authorized the admission of Rupert’s Land and the North-Western Territory into the new Dominion of Canada on July 15, 1870.

The relevant provision states: … upon the 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. I refer to this as the “‘05 Action” and there RRDC sues as a representative of the Kaska Nation.

It asserts that the relevant provision constitutionally obliged Canada to consider and settle its land claim before opening up the Kaska lands at issue for purposes of settlement. The lands at issue are within a group trap line and a community trap line registered to RRDC. The community trap line is in and around the community of Ross River and is subsumed within the larger group trap line, which comprises slightly more than 7% of the Yukon. [ 3 ] Between 1973 and 2002, RRDC was, in some capacity, engaged in land claims negotiations with Canada.

In this action, commenced action in 2006, RRDC sues on its own behalf and not on behalf of the Kaska Nation, essentially alleging that Canada has breached its duty to negotiate RRDC’s comprehensive land claim in good faith since the negotiations began in 1973. It seeks declarations in that regard as well as declarations relieving it from debts it owes to Canada for funds borrowed during the negotiations. I refer to the present action being tried as the “‘06 Action”.

2. PROCEDURAL BACKGROUND [ 4 ] The parties originally agreed in case management to an order that this action and the ’05 Action would be tried together and that any evidence and rulings in one action would be applicable to the other. [3] They also agreed to sever the issue of liability from that of damages, and to try liability first. [4] Both of these consent orders continue to apply. [ 5 ] In November 2011, the trial of both actions began.

At that time, I was asked by counsel for the parties to answer two “threshold” questions, which they drafted, relating to the justiciability of the relevant provision and whether it gave rise to fiduciary obligations. I answered both questions in the negative.

RRDC successfully appealed my answer to the justiciability question, and the Court of Appeal of Yukon returned the litigation to this Court, with a direction that the question posed was not appropriately severed from the other issues in the litigation. [ 6 ] RRDC’s statement of claim at that time in the ‘05 Action only tangentially touched on the issue of the honour of the Crown, and it was not argued further by RRDC’s counsel. [5] However, following the appeal, RRDC amended its statement of claim seeking a declaration that the relevant provision engages the honour of the Crown and that the honour of the Crown has not been upheld by Canada.

In particular, RRDC now pleads that the relevant provision: ... is a solemn commitment that engaged the honour of the Crown and, as such, it requires that the Crown: (

i) takes a broad, purposive approach to the

interpretation of the commitment; and (ii) acts diligently to fulfil it. [6] [ 7 ] In response to this change, Canada amended its statement of defence, pleading (in the alternative) that if the relevant provision does create a solemn obligation that engages the honour of the Crown: … then the Crown has acted honourably and met its obligation to fulfil it through its actions over the years and including but not limited to its actions in attempting to negotiate a comprehensive land claim and self-government agreement with the plaintiff and/or its representatives. [ 8 ] When the trial recommenced in September 2014, the parties agreed that only the ’05 Action would be tried.

The parties each closed their respective cases with respect to the evidence, however the trial had to be adjourned to allow counsel to finish their oral submissions. The adjournment was ultimately extended from September 2014 to March 2015, due to the intervening illness of RRDC’s counsel. [ 9 ] In its written argument for the trial, Canada asserted that the Crown had acted honourably in its dealings with RRDC.

In particular, Canada focused on the fact that it engaged in comprehensive land claim negotiations from 1973 to 2002, firstly with the Council of Yukon Indians (“CYI”), then representing RRDC, and later directly with RRDC itself. Canada’s arguments on the negotiations process from 1973 to the present day were set out in 53 paragraphs of its written outline. In addition, numerous documents in evidence were referenced in support of Canada’s arguments.

Canada also argued that its involvement in the Federal/Territorial Lands Advisory Committee (“FTLAC”), the lands set aside for the benefit of RRDC by federal cabinet directive (“Lands Set Aside” or “LSA”), and land withdrawal orders were further examples of how it had attempted to uphold the honour of the Crown. [ 10 ] RRDC declined to specifically respond to Canada’s arguments relating to the honour of the Crown in its written reply. [ 11 ] The trial resumed on March 13, 2015, at which time RRDC’s counsel, Stephen Walsh, began making oral submissions about his client’s conduct during the negotiations, and particularly the importance of their position that the Umbrella Final Agreement (the “UFA”) was never properly ratified.

It is the UFA which formed the basis of the final land claim agreements between Canada, Yukon and 11 other Yukon First Nations between 1995 and 2006. [ 12 ] Canada’s counsel objected to these submissions, because they raised issues arising in the ‘06 Action and the parties had agreed not to try the ‘06 Action at that stage.

My concern, however, was that Canada had put forward a significant amount of evidence and argument to say that, from 1973 on, it had made a good faith effort to come to a settlement with RRDC, but was unable to do so through no fault of its own, and therefore had complied with the honour of the Crown. I wanted to hear the counterpoint from RRDC. That led to some rather lengthy oral submissions about the various details surrounding the issue of the UFA ratification and other related matters.

We then adjourned to allow Canada’s counsel to make a sur-reply on another day. [ 13 ] Following a series of case management conferences, and further submissions from both counsel, on July 14, 2015, I decided that I should suspend my ruling on the modern-day

interpretation of the 1870 Order until the ‘06 Action was tried, since the principal issue in that action is whether Canada upheld the honour of the Crown in attempting to negotiate RRDC’s comprehensive land claim. I refer to this as the 2015 procedural ruling, and it is cited as 2015 YKSC 33 . I summarized my reasons for that decision as follows: 43 In its submissions on May 26, 2015, Canada's counsel urged me to proceed to decide the honour of the Crown issue based upon the evidence presented thus far.

Counsel suggested that if the evidence is incomplete, then that is RRDC's problem, since it has had every opportunity to present evidence in response to that which Canada has presented. While I am somewhat sympathetic with that argument, if I were to decide whether Canada has met the honour of the Crown in the present day, I would be doing so with the knowledge that the evidence of whether the post-1973 negotiations were conducted in bad faith is not complete.

This could lead to a decision in Canada's favour, which might well be inconsistent with a later decision in the '06 Action, if I am then persuaded that Canada indeed negotiated in bad faith.

CONCLUSION 44 In conclusion, I agree with Canada that, in these particular circumstances, it is appropriate to suspend my decision on the modern- day

interpretation of the 1870 Order until the issues in the '06 Action are tried. RRDC's asserted right to obtain a treaty before their lands were opened up for settlement is not absolute. Rather, it is subject to infringement by Canada, providing the infringement can be justified. For the sake of this argument, I will assume that the 1870 Order gives rise to a binding constitutional obligation on Canada to consider and settle RRDC's claims before opening up their lands for settlement.

I will further assume that there was an historic breach of that obligation by Canada by opening up the lands before commencing negotiations in 1973. However, if Canada can establish that it conducted itself in accordance with the honour of the Crown throughout the modern era negotiations, and was unable to obtain a treaty with RRDC notwithstanding, then that finding may have an ameliorating effect on any historic breach. Thus, the issue of whether the honour of the Crown was upheld during the negotiations is inextricably intertwined with whether Canada can be held liable for any historic breach.

Accordingly, Canada should be given a full opportunity to establish that it interpreted the relevant provision in a purposive manner and diligently pursued fulfillment of the purposes of the obligation arising from it, to use the language from Manitoba Metis , cited above . ( emphasis already added ) [ 14 ] RRDC appealed my 2015 procedural ruling. It sought not only to set aside the procedural ruling, but also a number of declarations roughly similar to those included in RRDC’s ‘prayer for relief’ in the ‘05 Action.

Canada successfully brought an application to quash the appeal with respect to all the relief, except that seeking to set aside the procedural ruling. [7] RRDC subsequently abandoned the balance of the appeal without explanation. [ 15 ] Counsel and I held a number of case management conferences in preparing for the commencement of the trial of the ‘06 Action.

At one such conference, on April 6, 2016, RRDC’s counsel argued that Canada should deliver its argument first on the grounds that: 1) it was Canada that raised the issue of whether it acted honourably throughout the modern-era negotiations; 2) the nature of the issue is such that Canada carries the persuasive burden; and 3) common sense dictates that the party that carries the persuasive burden should be the first to deliver its argument. Canada opposed this submission, stating that RRDC, as the plaintiff, has the burden of proof. By the end of the case management conference, RRDC’s counsel, Mr.

Walsh, [8] had changed his mind and agreed to file his written argument/outline first. [ 16 ] Before starting my analysis, I feel compelled to state that I am left troubled by the exchange of written arguments between the parties in anticipation of this trial. The sheer volume of the arguments and their lack of clarity, primarily on RRDC’s part, have left me somewhat confused as to what the genuine issues are and how they should be disposed of. New issues were raised as the arguments evolved and existing issues became something of a moving target as time went on.

Although I held several case management conferences with counsel along the way, I accept some of the responsibility for not maintaining a firmer grip on the deadlines for filing materials. [ 17 ] On August 19, 2016, RRDC’s counsel filed his initial outline of argument. However, the document was very short, only five pages and as many paragraphs, and most of the argument (the first 2½ pages) was a critique of my 2015 procedural ruling in the ‘05 Action.

Counsel also attempted to preserve the opportunity to provide further submissions by way of reply, quoting from the ruling as follows: … [I]t is trite to say that, until such time as Canada discloses to the plaintiff the grounds upon which it proposes to establish to the trial judge’s satisfaction that: “… it conducted itself in accordance with the honour of the Crown throughout the modern era negotiations, and was unable to obtain a treaty with RRDC notwithstanding” [and that] “... it interpreted the relevant provision in a purposive manner and diligently pursued fulfilment of the purposes of the obligation arising from it, to use the language from Manitoba Metis” , the plaintiff is obviously in no position to set out its response to those grounds.

Accordingly, the plaintiff will provide its response in its written submissions in reply.

RRDC’s counsel then listed 15 grounds upon which he purported to rely on to demonstrate that Canada’s post-1973 conduct “has been and continues to be flagrantly inconsistent with the honour of the Crown”. However, no arguments were developed on any of the points, nor were there any references to the evidence in support. [ 18 ] Thus, it would appear as though RRDC’s counsel effectively reverted to his position asserted at the case management conference on April 6, 2016, i.e. that Canada should make its arguments first, and then RRDC would reply.

It seemed as if counsel was keeping his cards close to his vest until Canada revealed theirs. That put Canada in the position of potentially having to apply to file a sur-reply. [ 19 ] Another problem with RRDC’s approach overall is that new issues, which should have been raised in the first instance, were sometimes raised in reply, as I have noted earlier in the trial of the ‘05 Action. I have cautioned RRDC’s counsel about this practice orally in court. [ 20 ] This very problem was raised by Canada’s counsel at a case management conference held on August 24, 2016.

However, I declined to grant Canada a remedy at that time. Rather, I encouraged Canada’s counsel to do the best she could to put her written argument forward, and if RRDC filed a reply that raised substantial new points which should have been raised initially, then Canada could apply to make a sur-reply. [ 21 ] Canada filed its initial outline of argument on September 20, 2016. In comparison to the argument of RRDC, Canada’s argument was much lengthier and more detailed (252 paragraphs, over 69 pages).

Further, as might be expected, in its introduction, Canada’s counsel took issue with RRDC’s scanty initial argument, and purported to reserve its right to provide a sur-reply: The defendant does not have a substantive outline from the plaintiff to which it can respond, despite the fact that the plaintiff bears the burden of proof to make out its case on the balance of probabilities.

The outline below is largely anticipatory … The defendant also reserves its right to request and provide a sur-reply, after the plaintiff has filed and served its reply … [ 22 ] RRDC filed a six-page reply outline on September 23, 2016. [ 23 ] Then, on January 31, 2017, RRDC filed a further outline of argument which largely repeated, with only minor amendments, the critique of my 2015 procedural ruling in the ’05 Action, set out in its initial outline filed August 19, 2016, as well as the 15 grounds upon which RRDC asserts that Canada’s post-1973 conduct has been inconsistent with the honour of the Crown.

However, yet again, the arguments were not developed, nor were there any references to the evidence in support.

Counsel also added 15 paragraphs about the Royal Proclamation of 1763 and the 1870 Order , concluding his argument with the assertion that the equitable principles contemplated in these documents had been breached (at issue in the ‘05 Action). [ 24 ] On February 28, 2017, Canada filed an addendum outline, again complaining in its introductory paragraph about the lack of substance being provided by RRDC’s counsel in his outline of January 31, 2017: This addendum to the defendant’s Outline is provided after receiving the 13 page amended Outline dated January 31, 2017, provided by plaintiff’s counsel, as ordered by the Court at the last Case Management Conference on September 30, 2016.

The plaintiff did not show in its Outline which parts were amended, as is usually required by the Rules. The defendant notes that most of paragraphs 1 - 4 in the plaintiff’s January Outline are substantially the same as the Outline filed by the plaintiff on August 19, 2016.

Paragraphs 8-20 are very similar or identical to various paragraphs of the plaintiff’s Outline (47-55; 79-81) filed in [the ‘05 Action] on July 22, 2014. [ 25 ] On March 20, 2017, RRDC’s counsel filed a further reply outline, in response to Canada’s addendum outline. [ 26 ] On March 28, 2017, I held a case management conference with counsel, at which time I allowed the application by Canada to file a sur-reply, which was done that same day. [ 27 ] On April 3, 2017, RRDC filed another copy of its outline of January 31, 2017, but this time with some references to the evidence in support of his 15 grounds of argument. [ 28 ] Finally, on the second day of the trial, April 6, 2017, RRDC’s counsel, now appearing with co-counsel, began making extensive references to notes prepared in response to Canada’s sur-reply.

These notes, which were compiled into a document, were the lengthiest submissions from RRDC to date, comprising 34 paragraphs over 21 pages.

Although counsel did not seek to file these submissions, presumably because they were being presented so late, I felt that it would be better to err on the side of caution and accept them for filing in order to have the most complete record of argument possible, given the complexity of the issues. [ 29 ] The upshot of these numerous written submissions, combined with the oral submissions made at trial, is that there are now multiple issues to be disposed of, well beyond those originally raised by RRDC in its pleadings or even in its initial written argument.

I will do my best to try to set them all out below. 3.0 ISSUES [ 30 ] In its initial outline filed August 19, 2016, RRDC raised the following issues in this trial (I have taken the liberty of changing the wording somewhat, as I felt was appropriate):

1) Has Canada, since 1973, failed to take reasonable, or any, steps to protect the claimed Aboriginal title of RRDC? If so, is such conduct inconsistent with the honour of the Crown? 2) Has Canada, since 1973, ignored the fact that until the relevant provision in the 1870 Order is complied with, the lands in question are “lands reserved for the Indians” within the meaning of s. 91(24) of the Constitution Act , 1867 ?

If so, is such conduct inconsistent with the honour of the Crown? 3) Has Canada, since 1973, failed to take reasonable steps to prevent the disposition of interests in land and resources within RRDC’s traditional territory to third parties? If so, is such conduct inconsistent with the honour of the Crown? 4) Has Canada generally failed to honour the Kaska Framework Agreement, dated September 21, 1989 (“KFA”), in particular paras. 4 and 12 of that Agreement?

If so, is such conduct inconsistent with the honour of the Crown? 5) Has Canada insisted on the Umbrella Final Agreement dated May 29, 1993 as the only basis for negotiation of RRDC’s (and other Kaska’

s) claims to its traditional territory and refused to negotiate on any other basis?

If so, is such conduct inconsistent with the honour of the Crown? 6) Has Canada negotiated in bad faith by insisting that the UFA be the basis for any negotiations with RRDC, despite the fact that it has not shown that the UFA has ever been validly ratified in accordance with s. 3.5 and other relevant terms of the 1989 Agreement in Principle between the Government of Canada, the Council for Yukon Indians and the Government of Yukon (the “1989 AIP”), and s. 2.2.8 of the UFA? 7) Have Canada’s representatives knowingly (or with reckless indifference) procured and relied upon a series of conflicting and false affidavits with respect to the alleged ratification of the UFA?

If so, is such conduct inconsistent with the honour of the Crown? 8) Has Canada failed or refused to agree, after June 2002, to resume negotiations with RRDC, despite requests from RRDC that Canada do so and despite proposals from RRDC for the resumption of negotiations?

If so, is such conduct inconsistent with the honour of the Crown? [9] 9) Was Canada’s conduct inconsistent with the honour of the Crown when it devolved administration and control over the lands in question to the Yukon Territorial Government, over the objections of the Kaska and without first considering and settling the plaintiff’s claims to compensation for lands required for purposes of settlement? 10) Has Canada allowed the moratorium on the collection of income taxes that had applied to RRDC members in respect of income earned on Land Set Aside to expire?

If so, is such conduct inconsistent with the honour of the Crown? 11) Has Canada refused, and does it continue to refuse, to take the steps necessary to convert RRDC’s Land Set Aside to reserve lands within the meaning of the Indian Act ? If so, is such conduct inconsistent with the honour of the Crown? 12) Has Canada refused requests to implement the published policy on the implementation of the inherent right of self-government in respect of RRDC?

If so, is such conduct inconsistent with the honour of the Crown? 13) Has Canada refused or failed to take the necessary steps to honour and/or implement the United Nations Declaration on the Rights of Indigenous Peoples ( “UNDRIP” ) (and in particular

Article 26 thereof) in respect of RRDC’s Aboriginal title and rights in and to the lands in question? If so, is such conduct inconsistent with the honour of the Crown? 14) Has Canada failed to take any steps to implement the terms of ss. 49 and 50 of the Yukon Act [10] in respect of RRDC’s unsettled claims in and to the Kaska traditional territory in the Yukon? If so, is such conduct inconsistent with the honour of the Crown? [ 31 ] The other issues raised after the RRDC outline was filed in August 2016 are as follows.

I will continue the sequential numbering to avoid unnecessary confusion: 15) Which party bears the onus of proof in this action to establish that the Crown did not negotiate in good faith? 16) What, if anything, does RRDC have to establish with respect to its prior use and occupation of the lands that have been opened up for settlement in the Kaska traditional territory? 17) Is there any basis in this case for the application of the principles relating to s. 35(1) of the Constitution Act, 1982 ? 18) Was the legislation passed after the 1870 Order purporting to open the Kaska traditional territory up for settlement null and void? 4.0 ANALYSIS [ 32 ] In my review of the evidence on the issues, I note that virtually none of it is particularly controversial.

Accordingly, my review can also be taken as my findings of fact in these reasons. In the areas where controversy exists, I will indicate what is in dispute.

4.1 Issue #1: Has Canada, since 1973, failed to take reasonable, or any, steps to protect the claimed Aboriginal title of RRDC? If so, is such conduct inconsistent with the honour of the Crown? [ 33 ] RRDC has not pleaded this issue in this action, except in its June 16, 2009 response to demand for particulars. Other than raising the bald issue in its initial outline filed August 19, 2016, RRDC’s counsel has not, as far as I can recall, made any further written or oral submissions on the point. Further, I have not been directed to any evidence relating to the issue.

However, evidence was presented in the ‘05 Action, where Canada responded in greater detail than here. Accordingly, much of the following findings are drawn from submissions made in that context, but not fully addressed in my decision in the ’05 Action. [ 34 ] The Federal/Territorial Lands Advisory Committee (“FTLAC”) was formed in July 1974 to provide a forum for coordination, at the regional level, of the interests and concerns of the Aboriginal peoples in the Yukon with respect to the administration, control and disposition of federal Crown lands, among other things.

FTLAC membership included federal and territorial representatives, as well as the Regional Director of what was then the federal “Indian and Eskimo Affairs Program”. The terms of reference for FTLAC were reformulated slightly in a document dated June 7, 1988, which then also confirmed that the membership of FTLAC included representatives from each First Nation for land applications falling within their respective traditional territories. Meetings of FTLAC were to be held at the call of the Chairperson, but were generally held once per month.

In the trial record of the ‘05 Action, there are copies of correspondence and minutes of the FTLAC meetings as examples of interactions between the then-Chairperson of the Ross River Resource Committee (“RRRC”), Hammond Dick (later an RRDC Chief), and FTLAC.

In particular, it is stated that notice of any land use/management application concerning RRDC would be sent to the RRDC for its input into the development of natural resources in the RRDC traditional territory. [11] [ 35 ] Prior to FTLAC and the consultation process formalized through that body, in 1955, Canada established a policy and procedure for reserving land in the Yukon for the use of other federal government departments, for specific purposes such as First Nation housing, for example. [12] These parcels became known as “Land Set Aside”.

The administration, control and disposition of such lands remained with the federal Department of Aboriginal Affairs and Northern Development, even after devolution in 2003. In a document dated April 20, 1979, Canada’s Director of Economic Development & Lands stated: It is the policy of Indian Affairs to consult with the Chief and Council before any alienations are made on Land Set Aside. As such, there is no legal (although we perceive a moral) obligation to consult.

We in the Department made the assumption that all “Land Set Aside” will eventually form part of a comprehensive land claim settlement and therefore, we treat Land Set Aside as if it were an Indian Reserve. [13] [ 36 ] “Land Set Aside” is defined in the UFA, which I will discuss in further detail under Issue #5, as meaning: … land in the Yukon reserved or set aside by notation in the property records of the Northern Affairs Program, Department of Indian Affairs and Northern Development, for the use of the Indian and Inuit Program for Yukon Indian People.

Section 4.2.2 of the UFA provides that Land Set Aside may be selected by a Yukon First Nation as settlement land under a Final Agreement, unless otherwise agreed. [ 37 ] RRDC has 82.17 hectares of Land Set Aside within its traditional territory.

Such land is generally being used for housing individual RRDC members within the Ross River community, or for community purposes such as a band office or community centre. [14] [ 38 ] In addition, beginning in 1988, a number of parcels of land within RRDC’s claimed traditional territory were withdrawn from potential alienation pursuant to “Withdrawal Orders” made by Canada and, post-devolution, by Yukon. These Withdrawal Orders protect the land parcels pending resolution of RRDC’s land claim.

In a document dated June 7, 1988, it is noted that a total of 2,137.91 square kilometres are interim protected. [15] These interim protection orders were extended by Yukon in April 2008, in April 2013, [16] and again in March 2017. [17] [ 39 ] RRDC’s counsel argued in his reply outline filed September 23, 2016 that Canada has failed to take steps to protect RRDC’s interests under the terms of ss. 49 and 50 of the Yukon Act . However, as I indicate later in disposing of Issue #14, RRDC has not pleaded this issue in the ‘06 Action.

Accordingly, I am not going to address it. [ 40 ] There is also an overlap between this issue and Issue #3 below. [ 41 ] I conclude that the FTLAC process and the interim protection measures were reasonable steps taken by Canada to protect the claimed Aboriginal title of RRDC. In any event, RRDC has failed to meet its onus on this issue. [18] 4.2 Issue #2: Has Canada, since 1973, ignored the fact that until the relevant provision in the 1870 Order is complied with, the lands in question are “lands reserved for the Indians” within the meaning of s. 91(24) of the Constitution Act, 1867 ?

If so, is such conduct inconsistent with the honour of the Crown? [ 42 ] RRDC did not plead this issue in the ‘06 Action. Accordingly, I am not going to address it here. I note however, that it was pled and argued in the ‘05 Action and addressed in my reasons at 2017 YKSC 58 .

4.3 Issue #3: Has Canada, since 1973, failed to take reasonable steps to prevent the disposition of interests in land and resources within RRDC’s traditional territory to third parties? If so, is such conduct inconsistent with the honour of the Crown? [ 43 ] This is essentially the same issue as Issue #1 and my answer to that question should also dispose of this question, i.e. RRDC has failed to meet its onus here. 4.4 Issue #4: Has Canada generally failed to honour the Kaska Framework Agreement, dated September 21, 1989 (“KFA”), in particular paras. 4 and 12 of that Agreement?

If so, is such conduct inconsistent with the honour of the Crown? [ 44 ] Once again, this issue is not pleaded in the statement of claim in the ‘06 Action. It was only referred to incidentally in two paragraphs of the response to demand for particulars from RRDC, dated May 14, 2009. Furthermore, RRDC’s counsel did not develop this argument in either their written materials or their oral submissions at the trial. Nor have counsel pointed to any particular evidence on the record to support the argument, other than referencing the KFA itself.

Accordingly, I am left to speculate (as was Canada) as to what exactly RRDC’s point is here. [ 45 ] Paragraph 4 of the KFA, dated September 21, 1989, provides: Except where the Parties otherwise agree, the [1989] agreement-in-principle concluded by the Council for Yukon Indians shall be the basis for the negotiation of Kaska Agreements. [ 46 ] “Kaska Agreement” is defined in para. 1 of the KFA as meaning: … a Yukon First Nation Final Agreement entered into by the Government of Canada and the Government of Yukon with the Ross River Dena Council or the Liard River Indian Band, or a Kaska Transboundary Agreement entered into by the Government of Canada and the Government of Yukon with the Kaska Dena Council; [ 47 ] I believe the relevant portion of the 1989 Agreement in Principle (“1989 AIP”) is s. 3.5, which states: Approvals of Settlement Agreements by Government and Yukon First Nations, in accordance with the process for ratification set out in each agreement, shall be conditions precedent to the validity of that agreement, and in the absence of approval by either, the agreement shall be null and void and of no effect. “Settlement Agreements” are defined in s. 1.9 of the 1989 AIP as including the UFA. [ 48 ]

Section 2.3 of the 1989 AIP states: Based upon this Agreement-in-Principle, the parties hereto shall begin as soon as possible to negotiate Settlement Agreements. [ 49 ] Thus, the 1989 AIP formed the basis for the negotiation of the UFA. Further, RRDC was represented by the Council for Yukon Indians as its bargaining agent during the negotiations and conclusion of the UFA. Once the UFA was concluded, it effectively superseded the 1989 AIP, as contemplated by s. 2.3 above. The UFA included a provision that the Yukon First Nation Final Agreements were subject to the terms of the UFA (s. 2.1.3).

Therefore, any argument by RRDC that it was not a party to the UFA or was not bound by the UFA in negotiating its Final Agreement is untenable. [ 50 ] Alternatively, RRDC’s argument may be that: (1) because the UFA was never validly ratified, which is another of RRDC’s arguments below (Issue #6), then the effect of s. 3.5 of the 1989 AIP is that the UFA is null and void and of no effect; and (2) further, para. 4 of the KFA has not been complied with. [ 51 ] I disagree with RRDC’s premise that the UFA has never been validly ratified.

My reasons for this conclusion are set out more fully in addressing Issue #6 below. Accordingly, I also disagree that Canada has failed to honour para. 4 of the KFA. [ 52 ] Paragraph 12 of the KFA states: The Parties shall continue to negotiate Kaska Agreements with due diligence and good faith according to the

schedule and agenda jointly established. [ 53 ] Once again, RRDC’s counsel has failed to develop this argument in any significant way. Canada’s response to this argument was to point out that there are numerous examples in the record of documents constituting negotiation schedules and agendas, many of which were jointly agreed upon between the governments of Canada and Yukon and RRDC. [19] RRDC’s reply to this response was conclusory and difficult to understand:

Canada’s argument that s. 12 of the 1989 Framework Agreement was honoured is plainly wrong. For example, it is clear that none of the documents that Canada refers to in its Outline constitute the

schedule and agenda referred to in s. 12 of the 1989 Framework Agreement bear no resemblance to the changes made in the UFA to the provisions dealing with transboundary claims which changes are clearly adverse to the interests of the Kaska and inconsistent with the honour of the Crown. [as written] [20] [ 54 ] To the extent that RRDC seems to argue that s. 12 of the KFA required a single “schedule and agenda” to be jointly agreed upon, I disagree. First of all, s. 12 anticipated the parties negotiating “Kaska Agreements”, in plural. Therefore, the

section must be interpreted as anticipating that there would be more than a single

schedule and agenda. Second, the evidence on record in this trial clearly indicates that these land claim negotiations were an ongoing process over several years, involving numerous meetings and a proportionate number of schedules and agendas that had to be negotiated for each meeting. Finally, the last part of the paragraph above beginning with “bear no resemblance” appears to be a non sequitur resulting from a typographical error. [ 55 ] Accordingly, I find against RRDC on this issue. 4.5 Issue #5: Has Canada insisted on the Umbrella Final Agreement dated May 29, 1993 (“UFA”) as the only basis for negotiation of RRDC’s (and other Kaska’

s) claims to its traditional territory and refused to negotiate on any other basis? If so, is such conduct inconsistent with the honour of the Crown? [ 56 ] Canada has admitted that prior to the end of its negotiations mandate in the Yukon, in or around June 2002, it had insisted upon the UFA as the mandatory basis for negotiations towards the settlement of RRDC’s land claims in the Yukon, and that it was not prepared to negotiate with RRDC on a basis other than the UFA. [21] [ 57 ] Therefore, the real question here is whether Canada’s position in this regard was inconsistent with the honour of the Crown.

For the following reasons, I conclude that Canada acted reasonably in taking this position and in a manner consistent with the honour of the Crown. [ 58 ] As stated above, RRDC was a member of CYI, and its predecessor, the Yukon Native Brotherhood, from that organization’s inception in the late 1960s. RRDC agreed to be represented by CYI as its central bargaining agent in the negotiations towards the 1989 AIP as well as the UFA.

Indeed, this was specifically confirmed by RRDC’s Chief, Hammond Dick, in a letter to the Director General of Indian and Northern Affairs Canada, Ian Potter, dated September 11, 1989: The Council for Yukon Indians was the central bargaining agent for Ross River in the AIP negotiations and continues in that role in the present Umbrella negotiations . Our regional negotiator is actively involved in those discussions. I, too, have joined in the Umbrella talks, in addition to my involvement as a member of the CYI Board.

I am pleased with the progress made being made and I fully intend to continue my participation to the extent my other obligations permit. (my emphasis) [22] [ 59 ] RRDC continued to be represented by CYI as its central bargaining agent throughout the negotiations for the UFA, up until and including its signing on May 29, 1993. Therefore, RRDC cannot take the position that it was not a party to the UFA negotiations. [ 60 ] I recognize that RRDC opposed the ratification of the UFA at the CYI “Special Leadership Meeting” on March 31, 1993.

Indeed, Chairperson Judy Gingell acknowledged this in her letter to the Minister of Indian Affairs and Northern Development, dated the same day, in which she stated: The Kaska representative asked me to relay that they opposed the attached resolution [approving the UFA], primarily due to

Section 25.5.5 of the UFA. This

section provides the Government of Yukon with a veto power over future transboundary settlements in the Yukon, in constitutional matters that are within the jurisdiction of the Yukon. The Kaska maintain that this veto power constitutes a major breach of Canada’s fiduciary obligation Their position was formally conveyed to you on March 26, 1993, in a letter signed by their leaders. [23] Nevertheless, as I explain more fully in discussing the next issue on ratification, RRDC also participated in the discussions and decision- making within CYI on the processes it would adopt to ratify the UFA.

Those processes evolved over time, but the one agreed-upon immediately prior to the vote taken at the CYI Special Leadership Meeting on March 31, 1993 was that the approval of the UFA would require affirmative votes by a majority of two-thirds of the 14 First Nations. This majority was achieved at that meeting and accordingly I conclude that the UFA was properly ratified.

The fact that RRDC did not agree with the outcome does not mean that they were not a party to the process; nor does it mean that the ratification was invalid. [ 61 ] It is also important to remember that the UFA was the product of approximately 20 years of negotiations, commencing in 1973 when the comprehensive land claim of the Yukon Native Brotherhood was accepted for negotiation by the Liberal Government of Prime Minister Pierre Elliott Trudeau.

From relatively early on in the negotiations, Canada had indicated a relatively flexible position in allowing the negotiation process to unfold through discussion, as opposed to imposing templates and restrictions on the parties. This is evident in a letter from the Minister of Indian and Northern Affairs, John Munro, to the CYI, dated April 22, 1980, in which he wrote: I … appreciate your concern that it is not conducive to negotiations for a federal negotiating posture to be either too restrictive or

definitive.

I agree that in any negotiations it is not advisable to impose preconceived models or conditions on the negotiations as these preclude the “give and take” necessary to reach agreements. [24] [ 62 ] This attitude was also reflected in a later letter from a subsequent Minister of Indian Affairs and Northern Development, David Crombie, to CYI, dated December 20, 1984, in which he stated: … My position has been that I would not threaten or seek to impose, and that there should be a clear, voluntary expression of choice by the Yukon Indian people as to whether the agreement-in-principle was acceptable to them [as written]. [25] [ 63 ] There is no evidence on the record before me that Canada attempted to impose a model agreement-in-principle upon CYI prior to the UFA signing on May 29, 1993. [ 64 ] I also acknowledge that there was a breakdown in negotiations between Canada, Yukon and RRDC for a period of time after the signing of the UFA, because of RRDC’s dissatisfaction with its content and the process by which it came about. [ 65 ] In 1994, there were several letters exchanged between RRDC’s counsel and Canadian officials in which RRDC questioned whether the provision in the UFA dealing with ratification of the document, s. 2.2.8, had been complied with and, if so, how. [ 66 ] However, in March 1996, the RRDC leadership obtained a mandate from RRDC members, on the recommendation of the Chief and Council of RRDC “to go to the bargaining table, on a “without prejudice basis”, under the UFA.” [26] Indeed, RRDC’s Chief and Council passed a band Council resolution on April 25, 1996 approving the return to negotiations on this basis.

This decision was communicated by RRDC’s Chief in a letter to Minister of Indian and Northern Affairs, Ron Irwin, dated May 10, 1996, despite RRDC’s concerns with the UFA. [ 67 ] In 1999, RRDC sent more letters to Canadian officials again requesting particulars on how the UFA had been ratified in accordance with s. 2.2.8.

However, there is no evidence that RRDC stated that it would cease negotiating on the basis of the UFA until 2000. [ 68 ] On February 24, 2000, the Kaska Nation (which includes RRDC) Tribal Chief, Hammond Dick, wrote to Minister of Indian Affairs, Robert Nault, stating a number of concerns regarding the status of the Kaska land claim negotiations.

In the letter, the Chief made the following statement, presumably with reference to the CYI ratification vote on March 31, 1993: … As you know, we rejected the UFA, and it continues to be our firm position that it was never validly ratified and is not binding on us. [27] Of course, simply saying this does not make it so. [ 69 ] In any event, on August 25, 2000, Canada responded with a letter from the Regional Director General of Indian and Northern Affairs Canada, Yukon Region, Terry Sewell, in which he stated: While I respect that we have different views on the binding nature of the Umbrella Final Agreement (UFA), Canada has been clear that the mandate for negotiations is based on the provisions of the UFA.

We understand the Ross River and Liard First Nations have entered these negotiations to reach an agreement based on the UFA. If we are mistaken in that understanding please clarify with the Chief Federal Negotiator in the Yukon, Mr. Jim Bishop. [28] There is no evidence that RRDC followed up with Mr. Bishop on this point. [ 70 ] Notwithstanding RRDC’s position on the UFA, it continued negotiating with Canada and Yukon.

As of January 30, 2001, RRDC had signed off on the land quantum part of its claim, with land choices comprising approximately 4,662 square kilometres (about 1,800 square miles) in numerous parcels near the community of Ross River. [29] The negotiations continued throughout 2001 and 2002, until there was a failure to obtain a Final Agreement in late June 2002 and Canada took the position that its mandate to negotiate had expired (I will deal with this in greater detail below under Issue #8).

Throughout this time, the parties were negotiating on the basis of the UFA. [ 71 ] It is reasonable to infer that the purpose behind the UFA was to ensure, to the maximum extent possible, that the Final Agreements reached with each of the Yukon First Nations would be as similar as possible, if not exactly alike. This is because the UFA itself requires that its provisions be included in each Yukon First Nation Final Agreement, along with the specific provisions applicable to each Yukon First Nation on a regional and community basis.

Thus, the UFA serves as a template to ensure that each Yukon First Nation has rights and obligations that are roughly equal. [ 72 ] Accordingly, in my view, it was reasonable for Canada to take the position that it would only negotiate with RRDC on the basis of the UFA. To do otherwise may well have resulted in a Final Agreement which varied significantly from those of the other 11 Yukon First Nations who have obtained Final Agreements on the basis of the UFA.

While it may be somewhat speculative, it is probably not unreasonable to expect that this could cause a considerable political upheaval between Yukon First Nations, and between those with Final Agreements and Canada. As Canada submitted, the content of the UFA emerged through negotiations over several years and resulted from a Yukon-made, unique process that was ultimately agreed to by all three parties, including RRDC’s bargaining agent, CYI.

Therefore, it was reasonable for Canada to take the position that it would remain the template for negotiations with RRDC. [ 73 ] In the result, I find that Canada’s conduct in this regard was consistent with the honour of the Crown. 4.6 Issue #6: Has Canada negotiated in bad faith by insisting that the UFA be the basis for any negotiations with RRDC, despite the fact that it has not shown that the UFA has ever been validly ratified in accordance with s. 3.5 and other relevant terms of the 1989 Agreement in Principle between the Government of Canada, the Council for Yukon Indians and the Government of Yukon (the “1989 AIP”), and s. 2.2.8 of the UFA? [ 74 ] As noted earlier, s. 3.5 of the 1989 AIP provides: Approvals of Settlement Agreements by Government and Yukon First Nations, in accordance with the process for ratification set out in each agreement, shall be conditions precedent to the validity of that agreement, and in the absence of approval by either, the agreement shall be null and void and of no effect. “Settlement Agreements” are defined in s. 1.9 of the 1989 AIP as including the UFA. [ 75 ]

Section 2.2.8 of the UFA provides: The parties to the Umbrella Final Agreement shall negotiate the processes for ratification of the Umbrella Final Agreement and the ratification of those processes shall be sought at the same time as the ratification of the Umbrella Final Agreement. [ 76 ] RRDC argues that s. 2.2.8 creates two requirements: 1) that the parties shall negotiate the processes for ratification and conclude an agreement on those processes; and subsequently 2) that the ratification of those processes be obtained at the same time as the ratification of the UFA. [ 77 ] I would clarify two points at this stage. As I understand the argument:

(1) RRDC is principally submitting that it is the first requirement above which has not been satisfied, in that no formal agreement about processes was ever concluded; and (2) despite this, RRDC takes no issue with the processes adopted by Canada and Yukon, respectively, for ratification of the UFA. [ 78 ] “Ratify” is defined in The New Shorter Oxford English Dictionary , 1993 as: Confirm or validate (an act, agreement, etc …) by signing or giving formal consent or sanction … [ 79 ] The definition of “ratification” in Black’s Law Dictionary , 9 th edition, includes the following: 1.

Adoption of an enactment, esp. where the act is the last in a series of necessary steps or consents; 2. Confirmation and acceptance of the previous act, thereby making the act valid from the moment it was done [ 80 ] The premise of RRDC’s argument here is that the parties did not conclude an agreement on the processes for ratification of the UFA at a particular point in time prior to the time when the ratification of the UFA was sought. In other words, the first requirement of s. 2.2.8 was never met, and, as a result of that failure, neither was ratification in the second requirement.

Accordingly, the UFA was not properly ratified and, pursuant to s. 3.5 of the 1989 AIP, the UFA is “null and void and of no effect”. [ 81 ] I disagree that s. 2.2.8 required the parties to reach an agreement on the processes for ratification before seeking the ratification of those processes at the same time as the ratification of the UFA.

Rather, I interpret s. 2.2.8 as requiring, firstly, that the parties negotiate the processes, which they did, and, secondly, that the parties conclude their agreement on those processes at the same time as they respectively sought to ratify the UFA, which they also did by their conduct. I will turn to the evidence which supports these conclusions shortly. [ 82 ] I acknowledge that the wording of s. 2.2.8 is less than crystal clear. The word “ratification” is used three times in the same sentence.

Interestingly, the same criticism can be made of s. 2.2.9, which provides: Each Yukon First Nation and Government shall negotiate the processes for ratification of that Yukon First Nation’s Final Agreement and the ratification of those processes shall be sought prior to or at the same time as ratification of the Yukon First Nation Final Agreement. [ 83 ] If RRDC’s

interpretation of s. 2.2.8 is correct, then there would also be a requirement for each Yukon First Nation and government to negotiate and conclude an agreement on the processes for ratification of that Yukon First Nation’s Final Agreement,

which would then need to be ratified or approved at or before the time for the ratification of the Final Agreement. However, the evidence shows that this did not happen in the context of any of the 11 settled land claims. Rather, as I understand the evidence, each First Nation was expected to determine its own ratification process internally. To my knowledge there is no evidence on the record in this trial of any agreements between a First Nation and the governments of Canada and Yukon on what the ratification processes would be before the First Nations sought ratification from their respective citizens.

Nevertheless, as far as I am aware, no one has ever argued that a First Nation’s Final Agreement (which also falls within the definition of “Settlement Agreements” in the 1989 AIP) is “null and void” because s. 2.2.9 was not formally complied with. [ 84 ] What the evidence shows is that the negotiation of the processes for ratification of both the UFA and the Final Agreements was an iterative, back and forth process, involving proposals and counter-proposals.

However, in the result, the ratification processes proposed by CYI were ultimately accepted by Canada and Yukon. [ 85 ] It must also be remembered that there was not a single point in time when the ratification processes employed by each of the three parties, CYI, Canada and Yukon, were ratified, prior to the ultimate ratification when the UFA was signed on May 29, 1993. This is because each party was required to individually ratify the UFA according to the processes each respectively proposed, which were implicitly if not expressly agreed to by the other two parties.

In other words, the ratification processes proposed by each of the three parties had to be individually authorized by their respective principals, and then subsequently collectively authorized when the parties ratified (i.e. signed) the UFA. [ 86 ] I will now turn to a review of the evidence on this issue. Virtually none of it is particularly controversial, and accordingly, my review will also be my findings of fact in this area. In general, the areas where controversy exists are where the parties have used “ratification” language in their respective documents.

I do not find against RRDC on this issue for that reason alone, but rather because I disagree with RRDC’s

interpretation of s. 2.2.8, as I have already indicated. [ 87 ] A Memorandum dated May 19, 1989 from a legal working group to the Chief Negotiators for each of the three parties specified that “Ratification Processes” were included on an agenda for an upcoming meeting. At that time, it was anticipated that a separate sub- agreement on the ratification processes would be completed. The agreement would deal with issues such as eligibility of voters, percentage of votes required for approval and methods of execution of the UFA by each First Nation.

There is no evidence that such a sub-agreement was ever concluded. [ 88 ] On June 7 and 8, 1989, a UFA negotiating meeting was held between the Chief Negotiators for each of the three parties. Ratification of the UFA was one of the several items discussed at the meeting. The minutes of the meeting indicate that Canada would ratify by way of the Cabinet and then an Order-in-Council and that Yukon would “mimic” that process to the extent possible. [30] CYI indicated that they would “ratify through a Special General Assembly”.

In addition, “each First Nation would specify how it will ratify its Final Agreement”. [ 89 ] I pause with my findings of fact to briefly discuss the change in Canada’s position about this meeting. Initially, two of Canada’s representatives in this action and another Federal Court action (T-108-07) understood that this meeting was a UFA negotiation session.

However, after Canada’s counsel consulted further with another two of its representatives (now retired) who actually attended the meeting, Canada subsequently clarified that the meeting was only an exploratory session where the parties exchanged their preliminary positions on various issues, including ratification. Accordingly, Canada subsequently clarified that there was no agreement at that meeting on the ratification processes to be employed by each of the respective parties.

I deal with this further below under Issue #7. [ 90 ] On December 8, 1989, at a press conference, Victor Mitander, CYI’s Chief Negotiator at the time, stated: … The ratification process will indicate whether the Yukon Indian people will accept a package or not … [U]ltimately the principals, our leadership, will have an opportunity to talk about what is required to conclude the balance of the package at that time. So, I think the ratification package, the ratification process has to be still laid out.

The General Assembly has provided specific instructions to C.Y.I. that once we have the package in place, there will be a special General Assembly called, and at that time special General Assembly will decide the ratification process on the U.F.A. as well as that first [Yukon First Nation Final Agreement] … [31] [ 91 ] On February 15, 1990, Senior Assistant Deputy Minister of Northern Affairs, Richard Van Loon (“ADM Van Loon”), wrote a briefing note to his Minister regarding ratification of the UFA.

In the note, he observed that CYI may ratify the UFA by their General Assembly, which would be equivalent to a vote by the 14 First Nation chiefs. However, ADM Van Loon’s advice to his Minister was that there should be a vote by every eligible Yukon First Nation person: The federal view is that UFA ratification will require a vote by every adult eligible to become a beneficiary. The vote could be on a community basis or overall Yukon.

The federal government may consider a 51percent vote in favour as sufficient to ratify the UFA … [32] It should be noted that there is no evidence of any response from the Minister to this briefing note. Therefore, this cannot be taken to be a reflection of Canada’s actual position on ratification at that time. [ 92 ] On February 16, 1990, a representative of Canada wrote an internal memorandum indicating that he or she had an expectation that CYI would ratify the UFA by “a territorial-wide referendum”: … Negotiations fell somewhat behind

schedule in 1989-90 as the Umbrella Final Agreement is now anticipated by April 7, 1990. The CYI will then hold a territorial-wide referendum to ratify the UFA. Shortly thereafter, one or more First Nation Final Agreements will be

negotiated and ratified by the individual community concerned. The First Nation Agreements and the UFA will then be submitted to Cabinet for ratification before additional [Final Agreements] are negotiated. [33] [ 93 ] Sometime after March 31, 1990, CYI published an “Information Package” entitled “Understanding the Yukon Umbrella Final Agreement”.

The document summarized the various components of the UFA in plain language, and under the heading “The Process”, the document stated: When the Negotiators are satisfied that they have come to an agreement on the meaning of all the provisions of the Umbrella Final Agreement, this agreement will be presented to a Special General Assembly of the Council for Yukon Indians.

Delegates will vote on it at this time to accept, amend or reject it … [34] [ 94 ] On July 6, 1990, one of Canada’s negotiators wrote a note to the Government Caucus members stating: At long last the editing of the Umbrella Final Agreement has been completed … … The Yukon Indians are holding their annual general meeting this week.

Subsequent to the meeting, negotiation of the UFA ratification process will get underway … [35] [ 95 ] On July 17, 1990, the Minister of Indian and Northern Affairs, Tom Siddon, wrote to CYI Chairperson Gingell, referring to the fact that the UFA had been initialled by the parties on April 1, 1990.

He then went on to propose that CYI ratify the UFA by a Yukon- wide referendum and suggested that at least 50% of Yukon First Nation members and 50% of Yukon First Nations themselves support the UFA: … [I]n addition to whatever traditional means you employ to ratify the Umbrella Final Agreement, I would ask that you also ensure that there is a Yukon-wide referendum.

How and when you wish to conduct this referendum is a matter for negotiation, but I consider it is essential that when I proceed to Cabinet I must be able to demonstrate that the Umbrella Final Agreement is supported by at least 50 percent of the Yukon Indian People and 50 percent of the Yukon First Nations. With this level of support, I would seek ratification by Cabinet of the Umbrella Final Agreement, after it has also been ratified by the Government of the Yukon Territory. This ratification would take place along with at least one and preferably three or four ratified Yukon First Nation Final Agreements.

If a Yukon-wide referendum is not acceptable to your people, I could only proceed to Cabinet if at least seven or eight of the Yukon First Nations have negotiated and ratified their First Nation Final Agreements … [36] [ 96 ] On July 31, 1990, Chairperson Gingell wrote to Minister Siddon acknowledging his suggested methods for ratification of the UFA and indicating that she had passed them on to CYI’s negotiators to consider when dealing with this issue over that summer. [ 97 ] On August 1, 1990, Chairperson Gingell wrote to Minister Siddon and Yukon Premier, Tony Penikett, indicating that CYI held its General Assembly on July 5 - 10, 1990, and that the initialled UFA had been put to the Assembly “for their consideration and eventual ratification”.

She did not elaborate on the ratification process that would be employed, but did say that CYI intended to put an information program into place on the UFA to assist First Nation communities in coming to an informed decision. [37] [ 98 ] On October 1, 1990, ADM Van Loon wrote to Chairperson Gingell about the funding for the Yukon Enrolment Commission (established to create a list of land claims beneficiaries) and the ratification process: I now await an indication from the CYI regarding the process that will be used to ratify the Umbrella Final Agreement.

This information is required to support any decision to supply the Commission with additional funding. Once there are firm plans for the ratification of the UFA, additional support may be provided to enable the Commission to update the beneficiaries list as required. [38] [ 99 ] On October 20, 1990, Minister Siddon held a press conference indicating that he had met that afternoon with CYI. His comments indicated that he was still pressing for a Yukon-wide ratification of the UFA at that time: … The [April 1, 1990 UFA] calls for a Yukon-wide ratification before the end of 1991 …

… … [W]e can see the process continuing to unfold… The Council for Yukon Indians have undertaken to submit to a General Assembly of the C.Y.I. Yukon First Nations [as written].

They are prepared to submit recommendations as to the means of giving final ratification to the Umbrella Final Agreement … … … [G]iven that we have important work to do in the Band final negotiations, leading in particular to a Yukon-wide ratification, then we’ve gotta [as written] get down to business … [39] [ 100 ] On November 7, 1990, Chairperson Gingell wrote to Minister Siddon acknowledging his desire for a Yukon-wide vote, but countering with CYI’s position that ratification would be considered at an upcoming Special General Assembly on January 16 to 18, 1991: … I wish to confirm the following … The Government of Canada sought an undertaking from the Council for Yukon Indians to propose the ratification of the Umbrella Final Agreement prior to March 31, 1991, through a territorial wide vote … … In response to the foregoing, the Council for Yukon Indians adopted the following corresponding positions … … The CYI advised that a Special General Assembly will be held on January 16, 17 and 18, 1991, to consider a process for Umbrella Final Agreement ratification … [40] [ 101 ] An agenda for a Federal Government Caucus meeting on the UFA, dated November 28, 1990, included an item entitled “Negotiations of ratification process of the UFA (2.2.8)”. [ 102 ] An undated, but presumably originating around the same time, “CYI Claim Workplan” for remaining UFA negotiations included as one of the issues “Negotiation of process for ratification of UFA (2.2.8)”.

The Workplan further indicated that CYI was to hold a Special General Assembly to decide on the process in mid-January 1991, and that the process proposed by CYI was to be discussed at a UFA negotiating session to be scheduled in February 1991. [ 103 ] An agenda for a UFA negotiation meeting held in Ottawa on December 4 to 7, 1990 similarly included an item entitled “Negotiations of ratification process of UFA (2.2.8)”. [ 104 ] A memorandum dated December 17, 1990, and directed by Chairperson Gingell to all Yukon First Nations indicated that a Special General Assembly would be held January 17 to 19, 1991, and that the discussion would focus on the process for ratification of the UFA.

She also indicated that a ratification working group had been established in November 1990 to assist in this process. She hoped that the upcoming Assembly would be able to decide on “how to ratify” the UFA.

In a separate memorandum, also dated December 17, 1990, and directed to all Yukon Chiefs and Band Councillors, the first item on the draft agenda for the upcoming Special General Assembly scheduled for January 1991 stated: “Review Agreement On Ratification To Discuss And Decide On Process” [as written]. [ 105 ] On December 21, 1990, Minister Siddon wrote to Chairperson Gingell indicating that he was “pleased to hear” that progress was being made with respect to ratification of the UFA and that he looked forward to hearing of continued progress in that regard. [ 106 ] On January 19, 1991, the General Assembly of CYI passed a Resolution by consensus which stated that ratification of the UFA would require a two-thirds majority of the Yukon First Nations and that the final date for ratification would be within three months of the first four Yukon First Nations reaching their Final Agreements:

THEREFORE BE IT RESOLVED THAT: 1. The Council for Yukon Indians and all Yukon First Nations shall jointly provide an information program to all Yukon First Nations citizens prior to undertaking Yukon First Nation by Yukon First Nation ratification; and 2. The Council for Yukon Indians and Yukon First Nations shall convene and utilize the Yukon First Nation Caucus in the ratification process. 3. Upon the completion of the following:

a) At least four First Nation Final Negotiations;

b) Umbrella Final Agreement Implementation Plans;

c) Enrollment Lists;

d) Detailed Workplans and Resourcing Agreements; each Yukon First Nation shall recognize the right of each Yukon Indian Person to have a say in the ratification of the Umbrella Final Agreement, and that the approval of the Umbrella Final Agreement shall be determined by each Yukon First Nation according to its traditions; and 4. The ratification of the Umbrella Final Agreement will require a two-thirds majority of the Yukon First Nations; and 5.

Final date for ratification of the Umbrella Final Agreement will be within three months of the first four Yukon First Nations who have reached their First Nation Final Agreements. AGREED TO BY CONSENSUS. [41] [ 107 ] On January 22, 1991, Chairperson Gingell wrote to Minister Siddon and Premier Penikett reporting on the Resolution passed by the Special General Assembly on January 19 th , and including the particular five clauses of the Resolution set out above.

In the opening paragraph of her letter she also reminded the recipients that: The Council for Yukon Indians during our General Assembly of July 1988 passed a resolution which required that a process for ratification be confirmed in a future Special General Assembly. [42] Finally, Chairperson Gingell indicated that she would be happy to meet with the Minister and the Premier later that week in the event that either had any questions on the resolution. [ 108 ] On January 25, 1991, ADM Van Loon prepared a memorandum on how to respond to the Resolution, presumably for discussion with the Minister.

After assessing various options, he recommended delaying making any decision on the ratification process at that time: … [I]t is recommended that we delay making any decision on the ratification process at this time. We should agree to proceed to negotiate four [Yukon First Nation Final Agreements] as soon as possible and advise CYI that we expect that these [Agreements] will be concluded by early summer.

At that time, we can assess progress in negotiations and the general support of [Yukon First Nations] before making a decision as to whether, and by what process, the UFA should be ratified … [43] [ 109 ] On February 27, 1991, Minister Siddon wrote to Chairperson Gingell indicating his disappointment that the parties would be unable to meet the mutually agreed upon deadline of March 31, 1991 for the ratification of the UFA.

Nevertheless, he further indicated that he was “prepared to proceed with the negotiation of Final Agreements with those First Nations which are prepared to accept the UFA and government’s allocation of land and financial compensation as the basis for negotiation”. Finally, he indicated that he was “heartened by the continuing commitment of the Yukon Indians to move to conclude” their comprehensive claim. [ 110 ] An undated “Workplan” for remaining UFA negotiations included as one of the issues “Negotiation of process for ratification of

UFA (2.2.8)”, with the note opposite stating “On hold until Minister re-assesses CYI’s proposed ratification process in August, 1991”. [ 111 ] A “Workplan” dated May 1, 1991, similarly included among the issues the negotiation of process for ratification of the UFA, with the notation opposite “Feds to consider CYI General Assembly decision”. [44] [ 112 ] The CYI “Workplan” for land claims and central self-government for the fiscal year 1991-92 indicated that: (1) the ratification process would be addressed by CYI over the period from April to October 1991; (2) that the information campaign would continue over that period; and (3) that the vote by the 14 First Nations on ratification would occur in December 1991. [45] [ 113 ] On October 25, 1991, Minister Siddon wrote to Chairperson Gingell indicating that he was pleased with the progress of the negotiations of the first four Yukon First Nations Final Agreements and, in view of that progress, he proposed the following steps for ratification of the UFA and the first four Final Agreements: 1.

Ratification of the UFA by the Council for Yukon Indians (CYI) through its Board or a General Assembly … 2. Yukon First Nations would then proceed to ratification of their respective [Final Agreements] and approval of the implementation plans by the [Yukon First Nations]. A similar process could be followed to ratify the self-government agreements. 3. With ratification of these agreements, I would proceed to seek approval by the federal Cabinet of the UFA and four [Yukon First Nation Final Agreements], together with authority to sign the agreements and to draft territory-wide settlement legislation. 4.

Official signing by the parties of the UFA and four [Final Agreements] could follow after Cabinet approval. [46] [ 114 ] I pause in my findings of fact here to simply observe that this is apparently the first indication that the Minister was prepared to back off from his earlier position that there be a territory-wide vote by First Nation members on ratification. [ 115 ] On December 16, 1991, Chairperson Gingell wrote to Minister Siddon and Premier Penikett to report that the UFA (now referred to as dated November 23, 1991) had been ratified by the Yukon First Nations at a General Assembly where ratification was discussed over a four-day period and “approved unanimously”. [47] She enclosed a copy of Resolution # 12, which accomplished this ratification.

Resolution # 12 was moved by George Smith (now known as Testloa Smith), who was then the Chief of RRDC.

The particular wording of that portion of the Resolution approving the UFA is as follows: The Umbrella Final Agreement dated November 23, 1991, is hereby approved as the basis for completing the negotiation of Final Agreements which reflect the particular circumstances of the First Nations. [48] [ 116 ] The passage of Resolution # 12 was also referred to in a community information circular about the UFA published by CYI, which stated: Following completion of negotiations of the remaining issues in the Umbrella Final Agreement, the Council for Yukon Indians held a special General Assembly on ratification of the Umbrella Final Agreement during the week of December 2, 1991.

Five members from each of the fourteen Yukon First Nations attended to hear the report of our negotiators.

After six days [as written] of discussions on the land claims agreement and self-government agreement, the Assembly voted by consensus to adopt the Umbrella Final Agreement. [49] [ 117 ] On January 6, 1992, Minister Siddon wrote to Chairperson Gingell extending his congratulations to CYI on the ratification of the UFA on December 7, 1991. [ 118 ] On January 13, 1992, Chairperson Gingell wrote to Minister Siddon about an upcoming meeting on January 20 th , where ratification of the UFA was on the agenda because CYI was requesting retroactive funding for the ratification meeting and vote the previous December. [ 119 ] On February 4, 1992, CYI and Canada agreed in writing that Canada would contribute $114,655 for CYI’s expenses in holding the ratification vote for the UFA, retroactive to December 1, 1991. [ 120 ] On February 6, 1992, Premier Penikett, and Chairperson Gingell jointly wrote to Minister Siddon confirming the ratification of the UFA by the General Assembly of CYI in December 1991. [ 121 ] On February 13, 1992, Canada’s then Associate Chief Federal Negotiator, Tim Koepke, wrote to CYI confirming the ratification of the UFA in December 1991.

He also set out the conditions which Canada required before seeking Cabinet ratification of the UFA and the Yukon First Nation Final Agreements, and introducing federal settlement legislation: These are as follows: - The UFA initialled by all parties. - The UFA implementation plan, approved by the Council for Yukon Indians.

- Four [Yukon First Nation Final Agreements], ratified by the respective Yukon First Nations. - Implementation plans for each of the [Yukon First Nations Final Agreements] and self-government agreements, approved by the respective Yukon First Nations. - Land selections and legal descriptions finalized following the public review. [50] [ 122 ] On March 17, 1992, Minister Siddon wrote to Chairperson Gingell acknowledging that the UFA had been unanimously ratified by Resolution # 12, and confirming that he would seek additional funding, if required, to allow for the conclusion of all the remaining Final Agreements during 1993-94. [ 123 ] The UFA dated November 23, 1991 was subjected to a legal and technical review by all the parties.

This resulted in a number of amendments and the amended UFA was dated May 30, 1992. [ 124 ] On July 20 to 24, 1992, CYI held a General Assembly at Lake Laberge, during which they introduced Resolution # 6 to address the process for approval of the amended UFA of May 30, 1992.

The pertinent portions of the draft resolution stated: WHEREAS the General Assembly of the Council for Yukon Indians approved by consensus the Umbrella Final Agreement dated November 23, 1991 (UFA November 23, 1991) on December 7, 1991; and WHEREAS as a result of editing and technical review certain editorial changes were made to the Umbrella Final Agreement of November 23, 1991; and … WHEREAS these changes have been incorporated into a revised Umbrella Final Agreement

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