In a recent decision of the Supreme Court of Yukon, Kaska Dena Council v. Yukon, 2019 YKSC 13 (PDF), the Kaska Dena Council ("KDC") argued that the Government of Yukon owed it a duty to consult and accommodate KDC before issuing sport hunting licenses under the Wildlife Act. In deciding that there was no legal basis for the dispute, the Court determined that the KDC, a society constituted to negotiate land claims, could not bring a claim that it was owed a duty to consult because it had not obtained authorization from its Kaska membership or the rights-bearing First Nations comprising the larger Kaska Nation.
The Kaska Nation
The Kaska people (collectively referred to as the Kaska Nation) have resided in northern British Columbia and the southeast Yukon for thousands of years – hunting and trapping in the territory that extended from Kwadacha (Fort Ware), British Columbia to north of Ross River, Yukon. Today, the Kaska Nation is made up of four Indian Act bands: the Liard First Nation, Dease River First Nation, Kwadacha First Nation, and the Ross River Dena Council (the "Kaska First Nations").
The KDC was incorporated as a British Columbia society in 1984 to represent the interests of the Kaska people. More specifically, it negotiates land claims on behalf of its registered membership in northern British Columbia and is involved in the Yukon Transboundary claim. The registered membership of the KDC comprises individuals from various First Nations, but it does not purport to include all beneficiaries of those Nations. 1
The Dispute Within the Kaska Nation
These proceedings are unique in that KDC, a society incorporated for a specific purposes (as set out above), claimed that it was entitled to bring an application for a declaration that Yukon had a duty to consult with it. KDC did not claim it was a rights-bearing group or that it represented the Kaska First Nations. Rather, it argued that it represented its registered membership who are communal aboriginal rights holders and members of the broader Kaska Nation. Even so, the Liard First Nation submitted that the KDC did not have the authority to commence the proceedings.2 Where there are competing groups claiming a duty to consult, identifying the rights-bearing groups in the area (i.e. those with authority) is a matter of preliminary importance. The Liard First Nation had also previously expressed to the governments of Yukon and British Columbia that KDC could not represent their interests unless specifically directed by their elected government.
In its analysis, the Supreme Court of Yukon provided the following framework for identifying who is entitled to bring an application to establish a duty to consult when there are divergent positions within an Indigenous nation respecting who may claim that duty:
1. The court must identify the rights-bearing groups.
2. If the group claiming a duty to consult is not the rights-bearing group then the court will look to whether that group or individual has been properly authorized to assert collective rights on behalf of the rights-holders.
Applying the framework, the Court first agreed that the four Kaska First Nations, not the KDC, are the rights-bearing groups of the Kaska people. This conclusion aligned with the argument of the Liard First Nation and was supported by expert evidence at trial. The KDC (as a non-rights-bearing group) therefore required authorization from the rights-holders in order to commence the proceedings.
In practice, either the individual Kaska members of the KDC or the constituent Kaska First Nations would have needed to voluntarily provide their authorization. Such authorization would have designated the KDC as their "sole representative for the purpose of pursuing their Aboriginal rights". Further, while First Nations (or collective groups holding aboriginal title) may organize themselves into a society for the purpose of settling their aboriginal land claims, the members of the Kaska Nation had not transferred their aboriginal title to the KDC. For these reasons, the KDC lacked the requisite authority to commence the proceedings and establish that the duty to consult was owed to it.
The Court also held that the KDC was not entitled to bring a class action on behalf of its membership, stating that "it would only be appropriate to do so in the exceptional case where there is no collective aboriginal rights holder."
With respect to the Kaska Nation, the Supreme Court of Yukon affirmed that the four Kaska First Nations are the proper rights-bearing groups. The duty to consult will only be owed to these groups unless another entity has obtained the proper authorization through the means set out above.
There must be evidence that the constituent rights-bearing members have authorized a society like the KDC to represent their interests and claim a duty to consult. Just because an entity has negotiated with, or been consulted by, governments in the past with respect to land claims, does not provide it with sufficient authority to represent rights-holders on matters beyond that scope.
For government and industry engaging in consultation activities, this decision provides a level of certainty with respect to who is owed a duty to consult in Kaska territory. While a duty to consult may be owed to an Indigenous society, this will not automatically be the case, and as a result some due diligence will be required on a case-by-case basis to determine with whom to consult.
1 The majority of KDC's members are from Kwadacha
First Nation, the Lower Post portion of Liard First Nation and
Dease River First Nation - all in BC.
2 The Dease River and Kwadacha First Nations did not consent or object to the KDC commencing the proceedings.
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