Whitehorse trucking company lawyers up over Yukon First Nations procurement policy

A lawyer for a Whitehorse trucking company is questioning the validity of the Yukon government's First Nations procurement policy, and says legal action may be coming if the government can't alleviate his client's concerns. 

Brian Beresh, lawyer for P.S. Sidhu Trucking Ltd., wrote to Highways and Public Works Minister Richard Mostyn on Feb. 12 asking for the data and information the Yukon government relied on to create the policy. 

The letter accuses the government of failing to adequately consult the wider business community and claims the policy may be unconstitutional. The government spent two years working with First Nations but only met with businesses once the policy was completed, the letter states.

"There are other affirmative action examples in other provinces, but none that are so radical in terms of discriminating against what we think are legitimate competitors," Beresh told CBC in an interview on Feb. 17. 

Policy unveiled last December

The Yukon government and Council of Yukon First Nations (CYFN) unveiled the Yukon First Nations Procurement Policy in December.

The policy aims to award 15 per cent of all territorial procurement contracts to Yukon First Nations businesses and incentivizes subcontracting or partnering with those businesses. 

Premier Sandy Silver said the policy would "level the playing field" and advance reconciliation.

Sidhu Trucking is concerned the policy may harm fair competition for government contracts and have serious financial consequences for non-First Nations businesses, said Beresh. The company also worries the policy may open the door for some businesses to "exploit" relationships with Yukon First Nations. 

"My client's company has a proud track record of employing First Nations individuals, of wanting to work in partnership with First Nations companies for the betterment of the Yukon, and that's our concern — that the government has not spent enough time thinking about the implementation of this policy and its long-term effect," he said. 

Discussions with business community ongoing, minister says

Mostyn, in a separate interview on Feb. 17, confirmed he had received and responded to Beresh's letter but said he was "not really that interested in discussing legal matters on the radio." 

"The concerns that are being raised in the letter are not unknown to me," he said, explaining that government and First Nations representatives have met weekly with members of the business community since January. 

"I hope that anybody with concerns about the policy and its implementation would participate in the meetings we've been having for the last month and would actually bring their concerns to the table and actually be part of the solution."

He said the government was "making good" on its obligations to Yukon First Nations and that ultimately, the policy would benefit the entire territory. 

Although the second phase of the policy is set to be put in place by the end of April, Mostyn said the government is open to pushing that date back.

In an email, CYFN spokesperson Lael Lund declined to comment directly on Beresh's letter, writing that the council "acknowledge(s) that there is still work to be done but the introduction of this policy is a positive step to fulfilling the commitments set out in the Umbrella Final Agreement."

"CYFN continues to work in collaboration with [the] Yukon government and the technical advisory committee on the [Yukon First Nations Procurement Policy]," Lund wrote.   

Constitutional challenge on the table, lawyer says

Beresh said that Sidhu Trucking won't file a constitutional challenge against the policy right away; instead, he and the company want the government to delay implementation, and amend or justify contentious portions of the policy. 

"We hope that the government will take the time and sit down with my client and others of like mind and listen to what their position is and how they see it as being unfair to citizens of the Yukon," Beresh said. 

"No one wants a protracted court battle, unless reasonable calm minds can't find some solution," he added. "[But] if that can't be found, the only way to bring justice to the situation would be a challenge."