The trial over the Kaska Dena Council’s (KDC) right to be consulted on hunting permits and tags issued in southeastern Yukon concluded July 17, with the KDC and Yukon government’s lawyers vehemently disagreeing on key points.
In their submissions, Yukon government lawyers Marlaine Anderson-Lindsay and Elaine Cairns reiterated their earlier arguments that the KDC did not have the authority to bring the legal action against the territorial government and that the lawsuit is without merit.
KDC lawyer Claire Anderson, however, replied that the Yukon government and co-defendant Liard First Nation (LFN) had “mischaracterized” the KDC’s claim and accused the Yukon government of having a “selective case of amnesia” when it comes to who KDC is.
Anderson closed out the five-day trial over a lawsuit the KDC filed against the Yukon government in January 2017. Its statement of claim alleged that the Yukon government has failed to meet its constitutional duty to consult with and, where needed, accommodate KDC before issuing hunting licences and tags on traditional Kaska territory in the Yukon, excluding the Ross River area and Acho Dene Koe First Nation traditional territory.
The KDC is seeking declarations from the court that the Yukon government has a duty to consult with it prior to issuing hunting licences and tags in the southern portion of Kaska territory in the Yukon but has failed to do so, an order requiring the Yukon government to start consulting KDC and the costs of the action.
The Yukon government denies any remedy should be granted.
LFN, which entered the case as a defendant in September 2017 alleging that the KDC had no authority to bring on the lawsuit, has filed a counterclaim asking the court to find that the Yukon government has a duty to consult with LFN, not KDC, on hunting licences and tags.
KDC is not a First Nation, but a society incorporated in Lower Post, B.C., in 1981. Its membership consists of people of Kaska descent who apply for membership and meet heritage requirements, or who are signed up by proxy. It has previously represented three B.C. Kaska First Nations — Daylu Dena Council, Dease River First Nation and Kwadacha Nation.
Continuing her submissions from the day before, Anderson-Lindsay on July 17 told Yukon Supreme Court Justice Ron Veale that over the years, the Yukon government has repeatedly reached out to KDC on fish and wildlife management issues. She pointed to letters Premier Sandy Silver and Environment Yukon deputy minister Joe MacGillivray sent to then-KDC chair George Miller in 2017, inviting the KDC to participate in discussions on fish and wildlife.
MacGillivary and assistant deputy minister Allan Koprowsky also met with KDC representative Stephen Walsh in May on Walsh’s request, Anderson-Lindsay said, but that meeting was “adjourned without agreement on consultation” because the Yukon government thought it appeared the KDC was more interested in discussing Aboriginal title and rights.
“Consultation is a two-way street,” Anderson-Lindsay said, accusing KDC of trying to negotiate its title through the fish-and-wildlife path.
Summing up the Yukon government’s arguments, Cairns said that the KDC is representing its members and not any rights-hold groups, and has itself admitted that it does not have Aboriginal title. As such, the Yukon government does not have a constitutional duty to consult with KDC, Cairns argued, but even so, has reached out to it on fish and wildlife issues and continued to do so even after KDC filed its lawsuit.
“The door has been opened for consultation on this issue.… Consultation is about a process, it is not a veto,” she said.
Granting the KDC’s declarations “would not further reconciliation,” Cairns added.
In her reply, however, Anderson said that the Yukon government and Liard First Nation have continually “mischaracterized” the KDC’s case. The KDC does not dispute the fact that it is not a rights-holding body, she said. Instead, the rights-holder is the Kaska Nation and Aboriginal title is a collective right held by the Kaska — including the Kaska represented by the KDC.
The KDC was also authorized by rights-holding groups to advance the Kaska trans-boundary claim in the Yukon, Anderson said, and by extension, has the right to protect that claim and the Kaska’s interests until an agreement is reached.
“Consultation is the doctrine that protects KDC and its members before it land claim is settled,” she said, adding that it didn’t make sense that the Yukon government recognized KDC as having the authority to pursue a land claim, but didn’t have authority to pursue consultation for that same area of land.
Anderson was also critical of the Yukon government’s arguments earlier in the trial that the area the KDC was asserting as traditional territory was “confusing,” and that it was unclear who the KDC represents. She pointed to maps the Yukon government had included in its own documents that illustrated Kaska traditional territory in the Yukon, and also said that the area in question is the same as the one at the centre of settled 2013 lawsuit over mineral rights, minus Acho Dene Koe First Nation traditional territory.
As well, the Yukon government has a file with its corporate affairs branch dating back to the 1980s that outlines who the KDC is, how its membership works and other key details about the society, Anderson said.
“The Yukon government has a selective case of amnesia when it comes to who the KDC is, its traditional territory and its members,” she said, adding that Indigenous people have the right to choose their representatives.
“The government doesn’t have to hold reconciliation hostage to a litigation whim,” she said. “A declaration is very much needed.”
Veale reserved his judgement.
Contact Jackie Hong at firstname.lastname@example.org