Environment Yukon has fulfilled its duty to consult the Ross River Dena Council before issuing big game hunting licences, Justice Ron Veale of the Yukon Supreme Court has ruled.
Veale says the government does have a duty to consult the First Nation because the harvest of wildlife in Ross River’s traditional territory does have the potential to affect the aboriginal rights to harvest animals.
The potential impact can be seen in Environment Yukon’s management strategy, which allows only a limited number of permits to hunt caribou in the Ross River area because of conservation concerns, he points out.
Veale writes the harvest of big game does affect the number of animals available. That could diminish the ability of Ross River hunters to obtain their meat, and therefore impact on their aboriginal rights to hunt.
When looking at the various wildlife management strategies Environment Yukon has implemented with the participation of Ross River, and at the efforts it’s made to consult with Ross River on other wildlife matters, the government has fulfilled its duty to consult, says Veale.
“For these reasons and the fact that declarations should be used sparingly, I exercise my discretion not to make a declaration that the duty to consult in the Ross River Area arises before the issuance of Yukon-wide licences and seals,” says the 29-page decision.
“Having so found though, I do want to observe that in my view there would be benefit to convening regular and predictable, i.e. annual, consultations with RRDC at the time that Yukon considers its annual hunting regulations.
“It strikes me that this would be an effective and reliable way of ensuring that RRDC’s claims to title and hunting rights within the Ross River Area are recognized.”
The Ross River Dena Council launched the court action in July 2014 and the matter went to trial this past August.
The Yukon Fish and Game Association did seek and was granted the ability to make a submission at the trial.
Veale said the case is different from the one involving the government’s duty to consult Ross River before allowing mineral claims to be staked in the Ross River area.
In the case of mineral claims, the government denied that it had a duty to consult the Ross River Dena Council prior to allowing mineral claims to be staked, Veale notes in his decision.
“Here, the duty to consult is acknowledged and performed.”
Ross River argued the government had an obligation to consult but was not fulfilling that obligation. It asked Veale for a declaration officially stating the government had a duty to consult prior to issuing hunting licences and big game tags.
Environment Yukon, on the other hand, presented the judge with two volumes of sworn statements by a senior wildlife manager detailing how Environment Yukon has worked with Ross River on management issues over the years, or has attempted to work with Ross River.
Veale points out the Yukon government argued there must be some evidence of a negative impact on the aboriginal rights to harvest wildlife before the duty consult kicks in.
The Supreme Court of Canada, however, has ruled that material evidence is not required to trigger the duty to consult, Veale points out.
Rather, he writes, the highest court has ruled the mere potential for adverse affects triggers the duty.
“If the harvest by licenced hunters increases generally in the Ross River Area, it is not hard to imagine the potential adverse impact on First Nation subsistence hunters exercising their right,” says the decision.
“The fact that a permit hunt was implemented for conservation reasons with the Finlayson Caribou Herd demonstrates that adverse effects can flow from the distribution of hunting licences and seals.
“I conclude that Yukon’s annual issuance of licences and seals, insofar as it allows licenced hunters to harvest wildlife in the Ross River Area, has the potential to adversely affect Aboriginal title and the right to hunt in the Ross River Area. The Crown’s duty to consult is triggered in these circumstances.”
Veale points out that between 1995 and 2013, an average of 164 moose, 69 caribou and 29 mountain sheep were harvested annually in the Ross River area, representing 24 per cent of the total moose harvest across the Yukon, 30 per cent of the total caribou harvest and 12 per cent of the sheep harvest.