It’s crystal-clear the Kaska of the Ross River Dena Council have aboriginal rights and title to their traditional territory in the Yukon, the council’s lawyer argued in court Tuesday.

Stephen Walsh argued it’s also clear the Yukon government needs the consent of Ross River before it issues hunting licences and big game tags that permit all Yukoners to hunt in the Ross River area.

The First Nation is seeking a declaration from the court that the government must consult before issuing licences and tags to hunt in the Ross River area.

The aboriginal rights and title of the Ross River Kaska to their traditional territory have already been acknowledged by the Yukon government in previous agreements between the Yukon and Ross River, Walsh said.

“It’s in black and white,” the Whitehorse lawyer told Yukon Supreme Court Justice Ron Veale.

Walsh said where aboriginal rights and title exist, the Supreme Court of Canada has said over and over again that governments must consult and even obtain consent if their conduct could affect those aboriginal rights and title.

There’s no question that issuing hunting licences and tags affects the Kaskas’ rights and title, and therefore the government is legally obligated to consult before issuing them, he said.

Walsh emphasized the Ross River Dena Council does not expect nor want consultation on every single licence issued because that would be impracticable for all parties.

The First Nation, however, is seeking an overarching arrangement that would fulfill the duty to consult and receive consent, he said.

Ross River won a similar case on the same argument when it took the Yukon government to court for issuing mineral claims without consulting the First Nation.

Staking mineral claims inside the Ross River area has been frozen until the First Nation and the Yukon government can reach an arrangement on the duty to consult.

Walsh said he is seeking the same court ruling regarding hunting licences.

“I don’t even know why we’re here,” Walsh said, suggesting there’s no need for a court case as the legal precedent has already been established.

Ross River has applied for a decision from the court without holding another full trial.

The First Nation insists everything the court needs to make a decision on the issue of hunting licences and tags has already been put before the court.

Thomas Isaac, a private Calgary lawyer specializing in aboriginal law, has been retained to argue the government’s case. He opened his arguments Tuesday afternoon and continued this morning.

Isaac asked the judge to dismiss Ross River’s request for a decision without holding a full trial.

The First Nation is asking for a declaration of paramount importance with constitutional significance but has not put forward any evidence supporting the request, he told Veale. (See separate story below.)

Several senior government officials were in court throughout the day, representing both political and departmental interests.

Two Kaska women were also there for part of the day.

The Yukon Fish and Game Association was also represented at the hearing by its executive director, Gord Zealand.

The association applied for and received permission to be an official intervener in the case.

The lawyer for Ross River said the Supreme Court of Canada has made it clear that even if governments simply believe aboriginal rights and title might exist, and may be affected by a government action, there is a duty to consult.

The greater the certainty that aboriginal rights and title exist and may be affected, the greater the onus on the government to consult “before” taking or allowing any action that may affect those rights, the highest court in the country has ruled, Walsh told Veale.

He said the Supreme Court has even said if the likelihood is high that aboriginal rights and title exist, governments would require First Nation consent before taking or allowing any action that may affect those rights and title.

The Yukon government, Walsh emphasized, has already acknowledged the Kaska have aboriginal rights and title to their traditional territory.

“I am saying consent is required in the case I am putting forward now,” he said.

Walsh said before opening an area to hunters in competition with his clients, the government must receive consent from the Ross River Dena Council.

Aboriginal rights in these matters include the “exclusive” use of the land and resources, the Supreme Court of Canada has ruled, Walsh said.

Issuing a hunting licence for the Ross River area is an infringement on those rights, he said.

Walsh insisted nobody could argue otherwise.

Harvesting moose, establishing hunt camps on the land – it all equals impact on Ross River’s aboriginal rights to exclusive use and occupancy, he said.

He suggested a trip along the South and North Canol roads during hunting season would explain everything, but it might be difficult for the court to find a parking spot.