A small cluster of trailers along the Ingraham Trail near Yellowknife is the focus of a battle over Indigenous land rights.
In a case that dates back more than a decade, occupants Agnes Christensen and her son Clayton Christensen say that, as members of the Deninu Kue First Nation of Fort Resolution, N.W.T., they are simply exercising land rights the Crown agreed to when Treaty 8 was signed more than 100 years ago.
The territorial government, however, says they’re trespassing. It initiated the court case more than a decade ago in an effort to get the Christensens to vacate the land, located near the turnoff to the road to Dettah.
The case was back in court in Yellowknife on Tuesday.
160 Acres
Fort Resolution is one of four Akaitcho Dene First Nations. The ADFN are now consulting their members on an agreement-in-principle for their land claim and self-government. It’s one of the last steps toward a final agreement that’s been in the works for decades.
Though the Akaitcho negotiations follow the same path as most modern land claim negotiations, identifying a large, collectively-controlled traditional territory, with land within it owned collectively by the First Nations, the Christensens say they want to go a different route.
When it signed Treaty 8, the Crown agreed that Indigenous signatories could claim lands collectively or individually. Under that second option, the Crown agreed to give those who wished to live on their own away from the First Nation community they are members of 160 acres on traditional territory. The Christensens say they are exercising that right in settling on lands near the Dettah.
In court documents supporting their claim, the Christensens refer to details in the draft Akaitcho agreement-in-principle (AIP). The federal and territorial governments want that information removed from the court file. They say it adds nothing to the Christensens’ case and violates a promise they made to the Akaticho to not disclose any details of the draft AIP to the public.
“There is nothing in the draft AIP that has the potential to affect the treaty rights to land because it’s a draft AIP,” said the lawyer representing the attorney general of Canada in court on Tuesday.
Alleged conflict of interest
The federal and territorial governments are also arguing that the Alberta law firm representing the Christensens is in a conflict of interest.
Two years ago, the Christensens initiated a class action to defend theirs and others’ right to claim the 160 acres promised in the treaty.
The federal government says the courts have established that lawyers representing clients as individuals in a related case run a real risk of being in a conflict by also representing them in a class action.The government says that’s because the interests of the individual client can differ from those of the class.
It’s asking the court to find that Alberta lawyer Jeff Rath cannot represent the Christensens in both the trespass case and the proposed class action.
In court documents, Rath says the conflict-of-interest argument is being “made for the camouflaged purpose of delaying the proposed class action.”
He goes on to say “the conflict of interest application should not be allowed to derail and override the societal benefit of using the class action procedure to resolve the issues of the ADFN members as they pertain to their individual treaty rights to select land in severalty in Akaitcho territory.”
The judge said she will give her decision on both the conflict of interest and AIP issues at a future date.