The Ross River Dena Council insists the Yukon government has a duty to consult with it – and possibly get its consent – before issuing hunting licenses and tags in Ross River territory.
The government says the way the First Nation has gone about asking the court to step in has made a “mockery” of the whole system. They want the whole case thrown out.
The two sides faced off in court Tuesday for the first half of a two-day hearing in Yukon Supreme Court.
The First Nation is represented by Stephen Walsh, the same lawyer who represented the council when it won a similar case around mining claims in about 63,000 square kilometres in the north end of the Kaska traditional territory covering the communities of Ross River and Faro.
This latest case deals with the same piece of land.
The Yukon government has brought in Thomas Issac, an Outside aboriginal law expert from Calgary.
Walsh told the court the First Nation is not seeking to be consulted on each individual license. Instead, they want something more overarching at the beginning of the hunting season.
He said the First Nation was not challenging the way things were done in the past, but wants the declaration from the court on any future decisions.
Walsh said the Crown has a duty to consult when it has knowledge of potential rights and title of a First Nation and is considering an action that might impact those rights.
Sport hunting potentially has a negative impact on the rights of First Nation residents to subsistence hunting, he said.
The Ross River Dena Council does not have a land claim agreement.
But Walsh argued that the Yukon government has already acknowledged the First Nation’s rights and title in a bilateral agreement that expired in 2005.
Walsh said the strength of the First Nation’s case could mean that the Yukon government needs to get its consent before the beginning of each hunting season.
Issac, meanwhile, said that the First Nation hasn’t presented enough evidence to make its case.
Issac contended this case is much different from the quartz mining case that Ross River won. There, the court was presented with specific evidence that Yukon’s regulatory regime didn’t give the First Nation due consideration. That’s not the case here, he said.
Here there’s not a shred of evidence in front of the court explaining what’s wrong with the current regime for licenses in the territory. The First Nation could have put together affidavits explaining how the current system negatively impacts its members, but it chose not to do that, he said.
“It’s not up to the court, it’s not up to the Yukon government, to try and figure out why we are here,” he said.
The Yukon government has presented two thick booklets it says is just a sample of how much Ross River has been consulted with over the years.
The government has a good relationship with the First Nation and there is no evidence that’s going to change, he said.
Issac listed a few examples from inside the government’s giant affidavit, dating back decades, where it says Ross River was consulted.
That includes examples like various surveys, the old game guardians program that involved patrolling the land and outfitters quotas.
Issac said he expects to delve deeper into some examples today.
He argued the court should throw out the case. Alternatively, the court could order a full trial and force the First Nation to be clearer about what specific problems they have with the current system, he said.
“A message should be sent not to waste the court’s time,” he said.
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