Taku River Tlingit First Nation v Canada (Attorney General)

Background

The Court characterized this case as being about whether the Crown has a duty to negotiate honourably with Taku River Tlingit once it committed to negotiate their land claim. The plaintiff’s comprehensive land claim was accepted by Canada. The focus of this case was on the 8% of the Taku River Tlingit claim in the Yukon.

In 1973, Canada publicly declared its willingness to negotiate with First Nations through a comprehensive land claims process. In 1984, Canada accepted Taku River Tlingit’s transboundary claim, with 92% of the territory claimed in British Columbia (BC) and 8% in the Yukon. In 1993, Taku River Tlingit entered into the BC Treaty Commission process. In 1999, Canada indicated that the Yukon portion of Taku River Tlingit’s claim could not be concluded until the BC portion was settled in a final agreement. This was the first time Taku River Tlingit was informed that the settlement of their claim in Yukon was dependent upon settlement of their BC claim.

In 2003, BC ceased negotiating with Taku River Tlingit until it had reassessed its mandate for transboundary negotiations with Yukon First Nations. Between 2008 and 2013, the plaintiffs made a number of requests to continue negotiations focusing on transboundary negotiations. These requests became more urgent when Taku River Tlingit learned that Yukon had approved the construction of a campground within the transboundary claim area. 

Despite requests from Taku River Tlingit, Canada maintained that it would not negotiate on the Yukon transboundary claim until the BC land claim was settled or until substantial progress was made toward that goal.

Decision

Justice Veale held that the issue in this case was not a question of whether a court can order Canada to commence treaty negotiations as Canada had already made the decision to commence negotiations in 1984 by officially accepting the claim. Rather, it was about whether Canada, having committed to negotiate Taku River Tlingit’s claim, was obliged to do so honourably. Canada had agreed to make negotiations with Taku River Tlingit over its transboundary claim “a matter of the highest priority in the Yukon” and it was not honourable to then refuse to negotiate once they had commenced.

Justice Veale went on to address Canada’s Crown prerogative power to negotiate land claims with Aboriginal peoples. This power must be exercised in accordance with Canada’s constitutional obligations to negotiate honourably and in good faith. Canada failed to meet these obligations when refusing to continue to negotiate with the Taku River Tlingit’s transboundary claim.