In a strange case of amnesia, Ottawa claims to have no knowledge of the Kaska Tribe, or Nation ever existing in the Yukon.
The Yukon Kaska are not pleased.
Ottawa’s decision to erase the Yukon Kaska comes out of a court case with the Ross River Dena Council over a trapline.
For decades, the Ross River Dena have claimed to be part of the Kaska Nation, which extends across the British Columbia Northwest Territories and Yukon border.
Ottawa spent years negotiating, unsuccessfully, a land claim with the Ross River Dena Council.
Now, Canada doesn’t believe the Kaska exist north of the BC border.
The kerfuffle began in a court case over the terms of the 1870 treaty, which handed Rupert’s Land and the North West Territory from the Hudson’s Bay Company to Canada. There are provisions to respect the settlement rights of the First Nations concerned in the deal, and the Ross River Dena are still trying to finalize its provisions.
While the conflict centres on one trapline, the extent of the Dena’s traditional territory is at stake.
Ottawa says it has no knowledge of the Kaska Nation in the Yukon, turning the case acrimonious from the outset. The federal government also insists it has no knowledge of the Kaska’s traditional territory in the Yukon, thus arguing that it has no idea where a trapline might be.
One major piece of evidence that could help the Ross River Dena’s case is being withheld by the Department of Indian and Northern Affairs.
The evidence is a 1982 anthropological report that was contracted by the department to aid in the Kaska’s comprehensive land claim settlement in British Columbia.
Two weeks ago, Justice L.F. Gower ordered the department to hand over the report, but the government appealed the order.
So for now, a court case continues to be stretched out over a preliminary piece of information.
“I’m of the view that Canada is desperate to suppress the contents of that report,” said Stephen Walsh, a lawyer for the Ross River Dena Council.
It may contain evidence that Canada pled falsely when it declared that it has no knowledge of the Kaska, he said.
For its part, the Department of Indian and Northern Affairs says the report is irrelevant because it deals with the Kaska in British Columbia.
The report is subject to legal privilege because it was created for a legal opinion, said the department’s lawyer, Suzanne Duncan.
It’s also subject to settlement privilege because it was created for a land negotiation. Settlement privilege is a provision created for land claims cases. The land claims process is meant to avoid litigation between Ottawa and First Nations, and settlement privilege is meant to encourage First Nations to take the land claims route rather than go to court.
Settlement privilege ensures their information won’t be exposed in future litigation, said Duncan. Forking the report over to the Ross River Dena Council could open the door to correspondence and other data, she said.
Judge Gower disagreed in his order to have the report passed on to the Ross River Dena.
After looking at the report, he found that it does mention the Yukon Kaska. Even if it’s just in passing, the report could be highly beneficial for the Ross River Dena.
The report isn’t subject to legal privilege because it was retained for the department, not for a lawyer, wrote Gower in his statements for the order.
It isn’t subject to settlement privilege either because that provision isn’t as stringent as the department makes it sound.
The judge also criticized Canada’s position.
If Canada had pleaded it isn’t sure if the Kaska exist in the Yukon, that would be a different story.
However, declaring that they have “no knowledge” of the Kaska is “an affirmative and unequivocal statement of the party’s state of mind,” he wrote.
As the order is appealed, the Ross River Dena Council had to begin arguing its case without the report.
Last week, the council tabled letters from former ministers of Indian and Northern Affairs and other department-published documents that clearly showed the existence of the Kaska in the Yukon.
Contact James Munson at
jamesm@yukon-news.com.