(Joel Krahn/Yukon News file)

Kaska Dena Council not a rights-bearing group, YG argues in hunting consultation lawsuit

KDC says the Yukon government has the duty to consult before issuing hunting licences for Kaska traditional territory

The Kaska Dena Council (KDC) has not proven it holds the right, or that it represents any group that holds the right, to be consulted on the issuance of hunting licences and tags in the southern portion of the territory, the Yukon government argued in court July 13 and July 16.

Yukon government lawyer Elaine Cairns made those submissions during the ongoing trial for a lawsuit the KDC launched against the territorial government in January 2017.

In its statement of claim, and in submissions KDC lawyer Claire Anderson made on the first day of the trial July 11, KDC says that, as a group whose members are Kaska people, the Yukon government has a duty to consult with it before issuing hunting licences and tags for traditional Kaska territory in the Yukon excluding the Ross River area.

The Yukon government denies the duty to consult with the KDC exists.

Liard First Nation (LFN) joined the legal tussle in September 2017 as a defendant, agreeing that KDC was not owed consultation and filing a counterclaim that LFN is.

KDC is not a First Nation, but a society incorporated in Lower Post, B.C. Its membership is comprised of Kaska residing in both British Columbia and the Yukon who apply to be members or who were signed up by proxy. In the past, KDC has also represented Daylu Dena Council, Dease River First Nation and Kwadacha Nation.

Anderson argued last week that the Yukon government has long recognized the legitimacy of KDC and the acknowledged Aboriginal title of its members, including the KDC as a party in discussions, consultations and even signing a mineral agreement with KDC in 2016. That agreement acknowledged title means that Kaska represented by KDC have the right to exclusive use and occupation of the southern portion of Kaska traditional territory in the Yukon, Anderson said. Therefore, Anderson said, the Yukon government has a constitutional duty to consult with KDC, and accommodate it where necessary, before issuing hunting permits and tags.

In her submissions, however, Cairns said that KDC is not a communal rights-bearing group like a First Nation, but rather, is a collection of individuals from different bands who joined KDC for different reasons. Over the years, the KDC has had a shifting definition of who it represents, Cairns argued, ranging from all Kaska Dene to the three B.C. Kaska First Nations to, in this action, its members.

Although KDC can act on behalf of rights-bearing groups, as it’s done in the past, Cairns argued that it can only do so with authorization and, in this case, has provided “no evidence” of having received any. She also said that previous agreements the Yukon government has signed with the KDC only show that, at that time, the KDC was acting as a Kaska representative, and that the agreements don’t amount to a recognition of Aboriginal title.

Cairns argued that the KDC’s lawsuit is not really about the duty to consult, but about Aboriginal title, and, “in our submission, this is not an appropriate venue for that.”

The Yukon government, which is also being represented by lawyer Marlaine Anderson-Lindsay, was expected to continue its submissions Monday afternoon. The trial is expected to continue into Tuesday.

Contact Jackie Hong at jackie.hong@yukon-news.com

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