The Kaska Dena Council (KDC), Yukon government and Liard First Nation (LFN) are facing off in the Yukon Supreme Court over whether the territorial government needs to consult with the KDC before issuing hunting licences and seals in the southern portion of the Yukon that’s considered Kaska traditional territory.
The area in question covers more than 38,000 square kilometres.
The three parties are now in the middle of a trial in Whitehorse, which began July 11 and is being presided over by Yukon Supreme Court Justice Ron Veale, triggered by a lawsuit filed by the KDC against the Yukon government in January 2017.
In its statement of claim, the KDC says that the Yukon government is constitutionally obligated to consult with it before issuing hunting licences or seals for Kaska traditional territory in the southern Yukon, excluding the Ross River area. It’s asking for the Yukon Supreme Court to issue a declaration of that, as well as a declaration that the Yukon government’s failure to consult with and accommodate the KDC “is inconsistent with the honour of the Crown.”
The Yukon government rejects that claim, saying in its statement of defence that the KDC has not established Aboriginal title to the area and that the duty to consult is not triggered by issuing hunting licences and tags. It’s asking that the lawsuit be dismissed with costs.
The case is unusual in that the KDC is, in itself, not a First Nation, but a society with a membership made up of individual Kaska that’s headquartered in Lower Post, B.C. Membership is open to people with Kaska heritage living in British Columbia, who have lived in British Columbia or have roots there. In the past, it has represented three Kaska First Nations in British Columbia — Daylu Dena Council, Dease River First Nation and Kwadacha Nation.
Liard First Nation (LFN) and the Ross River Dena Council are not represented by KDC.
LFN was added as a defendant in the case when it and Chief George Morgan joined the legal kerfuffle in September 2017, filing a counterclaim alleging that KDC had no authority to bring such an action to the court. LFN is also seeking a court order stating that the Yukon government had a constitutional obligation to consult with LFN, not KDC, before issuing hunting licences and tags for its traditional territory.
The three parties have filed thousands of pages of documents to the court since then, including dozens of affidavits, letters, constitutions, historical documents, membership registries and maps.
In her submissions, KDC lawyer Claire Anderson said that KDC is “a representative of Kaska Nation, not the representative,” and that its claim should not be viewed as trying to extinguish LFN’s rights.
“The duty to consult can be owed to multiple entities,” she said, arguing that KDC’s members are Kaska, and therefore, under the United Nations Declaration on the Rights of Indigenous Peoples have the rights to self-determination.
Anderson said that KDC, established in 1981, has long been recognized as a legitimate and rights-bearing entity, having been involved in negotiations, discussions and consultations with the Yukon government and LFN.
“(The KDC’s) existence can’t be held hostage to another entity’s whim,” she said.
However, in her submissions, LFN’s lawyer Caily DiPuma argued that the constitutional duty to consult is owed only to modern-day rights-holding communities that can trace its lineage to a historical group. The LFN is an example of that, she said, tracing its roots to the Kaska Nation. Meanwhile, DiPuma argued, the KDC is a society whose members can be signed up by proxy, and is simply a collection of individuals without historical continuity.
The distinction is important, she said, because Aboriginal title and rights are communal, not individual. Allowing title rights to any group of individuals who come together would set a dangerous precedent that would result in a multitude of consultation claims that would dilute the communal nature of Aboriginal title and rights.
“Consultation is not a ‘the more the merrier’ proposition,” she said.
This isn’t the first time KDC has gone to court over consultation obligations. In 2014, it launched a lawsuit against the Yukon government seeking declarations that the Yukon government has the duty to consult with KDC on mineral rights and a duty to notify, consult and accommodate KDC on any mining exploration activities taking place on Kaska traditional territory outside of the Ross River area. The matter was later settled out of court.
DiPuma was expected to finished her submissions the morning of July 13. The Yukon government was scheduled to begin its submissions later the same day, with the trial expected to continue into next week.
Contact Jackie Hong at firstname.lastname@example.org