Ross River Dena Council can defend aboriginal rights: judge

The Ross River Dena Council represents the entire Kaska Nation, ruled Supreme Court Justice Leigh Gower on Thursday.

The Ross River Dena Council represents the entire Kaska Nation, ruled Supreme Court Justice Leigh Gower on Thursday.

The decision solidifies the council’s position as a legal representative of the Kaska nation, and effectively allows it to defend its members’ aboriginal rights.

It’s a step forward in the slow struggle to build the Kaska Nation.

The Ross River Dena Council is suing Canada for failing to fulfill the conditions of an 1870 treaty that delineated the Ross River Dena’s traditional trapline territory.

A major question in the trial was whether the Ross River Dena Council actually represented the entire Kaska Nation, too. Gower found it does.

The case is complicated by the labyrinthine political structure of the Kaska.

The Kaska Dena Council, located in British Columbia, is in the midst of lengthy land claims negotiations.

Two Yukon First Nations are involved in those negotiations because they share Kaska blood. The Liard First Nation and the Ross River Dena Council, both based in southeastern Yukon, have a seat at the table.

The problem before Gower stems from uncertainty about the role of Indian bands, like the Ross River Dena Council, created by statute in the 1876 Indian Act.

They are legal creations, and not the true holders of aboriginal rights and title. Individual aboriginal people are the right and title holders, according to older case law.

Thus, Ross River Dena Council cannot sue on behalf of the Kaska, Canada argued. They can only represent Kaska aboriginal rights by naming individual Kaska people who support the council in its claims case over the 1870 treaty.

But legal opinion on the issue has evolved rapidly in the last decade, with more cases across the country permitting the expansion of a band’s responsibilities beyond the explicit roles outlined in the Indian Act.

Crucially, they’ve allowed Indian bands to stand up and defend aboriginal rights and titles for an entire community, like a class-action lawsuit—something only individuals could do in the past.

Individual Kaska people could get together and sue Canada collectively to defend their aboriginal rights, but it wasn’t clear whether an Indian band, like the Ross River Dena Council, could do it for them.

Canada worried it would owe damages to the entire Kaska nation if individual Kaska people were not named as plaintiffs. Gower dropped the issue, saying it was premature. Liability had to be established first, he said.

There was evidence other Kaska bands support the Ross River Dena Council.

A letter from the chief of the Liard First Nation endorsed the council’s actions, and wished them “the best of luck.”

Another letter from the Kaska Dena Council expressed similar support.

In the end, Gower decided to stick with the trend that permits an Indian band to represent the larger ethnic group it belongs to.

The Ross River Dena Council, “as one of the constituent bands of the Kaska Nation, and indeed the band most closely connected with the lands at issue,” is an appropriate plaintiff to act on behalf of the Kaska Nation, wrote Gower.

The council is recognized as a “juridical person with the legal capacity to commence and prosecute” within the lawsuit, Gower wrote in his decision.

Finally, “it is unnecessary in these circumstances to require (the council) to name a further individual Kaska member as a co-plaintiff in the style of cause.”

The Kaska Tribal Council represents the nation in its entirety, while the Kaska Dena Council is a registered BC society.

Contact James Munson at

jamesm@yukon-news.com.

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