The Yukon government continues to assert that the Kaska have no right to pass a resource law governing their traditional territory.
The Council of Kaska Chiefs announced late last month its intention to write a law governing development on its lands.
In an interview with CBC News, Premier Darrell Pasloski said he doesn’t believe the Kaska have the legal right to do so, because they have not signed a land claims agreement.
“My understanding is that Indian Act bands aren’t able to proclaim laws,” he told the CBC.
“Those First Nations who have gone through a modern day treaty, who have a final land claim agreement and self-government agreements have the ability to make laws, but those who have not, do not have that ability to make laws.”
A cabinet spokesperson told the News that the premier will not comment further on the issue at this time, but offered Michael Hale, assistant deputy minister for aboriginal relations, as a spokesperson for the government.
He said that while the Yukon government is no expert on the Indian Act, it’s his understanding that groups who fall under that legislation cannot pass laws.
“Our understanding is that the Indian Act limits activity to bylaws on reserve,” he said.
“It’s not going to change our perspective around the application of Yukon laws.
“It’s not intended as any disrespect towards the Kaska in any way. It’s, we would suggest, a reasonable assertion that Yukon laws apply on Crown land.”
That doesn’t mean that the government won’t talk to the Kaska about their concerns, said Hale.
“We’re more than happy to talk to any First Nation about activity that happens in their traditional territory.”
How the government handles the law once it is written will depend on what it says, he said.
“We respect that they’re setting out on their own process, and we’ll wait to see what they come up with.
“We’re certainly supportive of any First Nation that wants to articulate its values, and what they’d like to see in their traditional territory. How we deal with it will depend entirely on the content.”
But whether you call it a law or something else is really besides the point, if you ask Ken Coates, a historian and senior fellow with the Macdonald-Laurier Institute.
“The premier’s very technical answer about whether they have a right to pass a law and call it a law - you can call it whatever you want,” he said.
At the end of the day, the Kaska must be given significant say over the development in their territory, thanks to some recent Supreme Court of Canada decisions, he said.
“The Tsilhqot’in decision has elevated quite dramatically the authority of First Nations people on non-treaty land.”
That case, from last year, declared that the Tsilhqot’in First Nation has aboriginal title to its traditional territory, a vast swath of central B.C.
The ruling doesn’t equate to a veto over development, but it does significantly constrain governments in situations where they are pushing ahead with projects against First Nation opposition, said Coates.
The interesting thing about the Kaska declaration is the strong support it has received from industry, he said.
“They want certainty. They want to know what the rules are,” he said.
“In the absence of a clear declaration of how the Kaska are going to approach this, it becomes a project-by-project, community-by-community kind of undertaking. So one community wants A, B and C, the other wants X, Y and Z, and the companies don’t know what the fair arrangements are, they don’t know what they’re expecting, and it adds an enormous amount of time and effort into the process.”
First Nations participation in resource projects is increasingly becoming a requirement, said Coates.
And that’s a good thing, because partnerships mean less labour flying in and out, and more money staying in the regional economy, he said.
“When aboriginal people get involved in resource development, it magnifies the return to the region itself.
“The idea that you’ll have resource development in the country anymore - not just in the Yukon but anywhere - without full engagement with aboriginal people just isn’t part of the puzzle.”
Contact Jacqueline Ronson at
jronson@yukon-news.com