The Yukon government does not need to consult with the Kaska Dena Council (KDC) before issuing hunting licences and tags in the portion of southern Yukon encompassed by Kaska traditional territory, a Yukon Supreme Court judge has ruled.
In a 54-page decision released Mar. 5, Chief Justice Ron Veale ruled against KDC on six key issues raised by the KDC in its 2017 lawsuit against the Yukon government, on which Liard First Nation (LFN) and its chief, George Morgan, later joined as defendants.
Among other things, Veale found that KDC did not have the authority to bring about the court action in the first place.
The KDC is itself not a First Nation, but a society headquartered in Lower Post, B.C., with a membership consisting of individuals of Kaska descent. It is currently negotiating a land claim with British Columbia and has previously acted on behalf of one or more of the four Kaska First Nations, including in negotiations and consultations with the Yukon government.
KDC filed a statement of claim against the Yukon government in January 2017, arguing that the Yukon government was constitutionally obligated to consult with and accommodate it every year before issuing hunting licences or tags in a portion of southern Yukon that overlaps with a portion of Kaska traditional territory.
KDC was seeking a declaration from the court that the Yukon had the obligation to consult with it but had repeatedly failed to do so.
Although the KDC acknowledged that it, as a society, is not a rights-bearing group, it argued that its members have Aboriginal title and that it represented their Aboriginal rights, something it claimed the Yukon government and LFN had previously recognized.
The Yukon government denied it owed any consultation to KDC, arguing that it was not a rights-bearing group, had not been authorized to represent a rights-bearing group, and that KDC could not assert rights or title on behalf of some members of Kaska Nation. It also challenged KDC’s authority to even bring the lawsuit forward on those grounds.
LFN and Chief Morgan later joined the lawsuit as defendants, echoing the Yukon government’s position. It also argued that only the four Kaska First Nations — LFN, Ross River Dena Council, Kwadacha Nation and Dease River First Nation — are Aboriginal rights-bearing groups and legal representative for Kaska living in the Yukon and B.C., and, unless they explicitly give permission to a representative, are the ones who must be consulted.
Acho Dene Koe First Nation joined the case as an intervenor.
The matter went to trial in July 2018.
In his decision, Veale first analyzed the question of whether KDC had the authority to bring the lawsuit forward.
Veale wrote that while KDC had previously negotiated with, been consulted by and entered into agreements with the Yukon, it had done so after being given explicit permission by at least one First Nation.
KDC has not, Veale wrote, been authorized by either its members, nor any of the Kaska First Nations in the Yukon or British Columbia, “to bring this court action and establish that the dut y to consult is owed to the KDC,” and therefore did not have the authority to do so.
Veale also found, among other things, that KDC was not entitled, in the alternative, to launch a class action on behalf of its Kaska members; that its previous agreements with the Yukon did not “confer” it “with the rights-bearing aboriginal authority to bring this action;” and that LFN was not prevented by previous agreements with KDC to oppose KDC’s lawsuit.
KDC’s lawyer, Claire Anderson, told the News Mar. 7 that she was still reviewing the decision with her client and declined to comment further on the outcome or possible next steps, if any.
In a press release, LFN’s chief said he was “hopeful” that Veale’s decision will “clarify any confusion held by industry, government and even our own members about who holds Kaska aboriginal rights and title and must be consulted and accommodated.”
“This decision makes clear who governments and industry must consult and engage with on matters relevant to Kaska aboriginal rights and title,” Morgan said in the press release.
Contact Jackie Hong at jackie.hong@yukon-news.com