Justice Ron Veale of the Yukon Supreme Court will decide Thursday whether to postpone a three-day trial between the Yukon government and the Taku River Tlingit First Nation of Atlin.
The government is seeking an adjournment, arguing it makes no sense holding a trial at this point because two of three issues before the court have been addressed.
The third is the same question over hunting licences that is currently before the Yukon Court of Appeal, government lawyer John Hunter of Vancouver told Veale by speaker phone during a hearing last Friday.
The Taku River Tlingits, on the other hand, say they want and deserve their day in court, which is scheduled to begin Monday.
But Hunter argued there’s no point taking up the court’s time nor incurring significant expense before hearing what the Court of Appeal says in the issue over the duty to consult the Ross River Dena Council before issuing licences and big game tags.
The Taku River Tlingits initially sued the Yukon when the government announced it was building a campground off the Atlin Road, at the north end of Atlin Lake.
The campground location, the Tlingits maintain, is in the area that forms their transboundary claim to traditional territory in the Yukon, a claim which is still subject to negotiations to settle unsurrendered aboriginal rights and title.
Hunter said the parties have agreed to settle the campground matter through government-to-government discussions.
While the campground was the initial objection, last April, the Taku River Tlingits expanded their lawsuit.
They claim the government has a duty to consult the First Nation before issuing mineral claims in their traditional territory, much like the successful argument put forward by the Ross River Dena Council which led to a freeze on staking claims in the Ross River area.
Hunter told Veale he just received instructions Friday morning that the Yukon is conceding it has a duty consult the Taku River Tlingits before issuing mineral claims in the area of their transboundary claim.
How the Yukon government plans to fulfill the obligation to consult, whether it will involve withdrawing the land from staking, Hunter said he wasn’t sure.
The Taku River Tlingits also expanded the original lawsuit last April by claiming the Yukon has a duty to consult before issuing hunting licences and big game tags that allows hunting in the area of the transboundary claim.
Hunter said it’s the very same issue that Veale ruled on last year when he found there was a duty to consult the Ross River Dena Council before issuing licences and big game tags to hunt in the Ross River area.
But Veale also ruled the duty had been fulfilled by the involvement of the Ross River Dena Council in wide ranging discussions with Yukon government officials regarding wildlife management strategies in Ross River’s traditional territory.
Ross River is appealing the finding that the duty to consult was fulfilled. The Yukon is appealing the finding that there is duty to consult before issuing hunting licences and tags.
Hunter insisted the remaining issues to be decided in the Taku River Tlingit case are the same as they are in the Ross River case involving hunting licences and tags.
There’s nothing urgent about the Taku River Tlingit case, said Hunter, suggesting there would be no harm in waiting to see what the Court of Appeal has to say about the Ross River case.
If the campground project was still an issue, it would be a different matter, he said.
As part of its defence, the government has compiled a 1,400-page sworn statement from a Yukon government biologist detailing the involvement of the Taku River Tlingits in wildlife management discussions.
Stephen Walsh, the Whitehorse lawyer who represents the Taku River Tlingits as well as Ross River, told Veale the issues over hunting licences and big tags are not the same, not at all.
It’s not the same First Nation, he emphasized.
It’s not the same land base, it’s the not the same composition of animals and the size of the traditional territory in question is significantly smaller than the Ross River area.
Walsh said it’s not the same because the area is much closer to Whitehorse, and the hunting pressure is different.
It could be months and months before there’s a decision coming down from the Court of Appeal on the Ross River matter, he said, adding the superior court likely won’t even hear the case until next November.
Walsh insisted his clients want and deserve a ruling on their constitutional rights inside their traditional territory.
Hunting season, said Walsh, is right around the corner, noting the spring bear season opens in April.
Veale indicated he was leaning toward a postponement of the trial. He indicated he would first like to see in writing the government’s acknowledgement that it has a duty to consult before issuing mineral claims.
The judge asked Walsh if he’d like a court order outlining the acknowledgement. Walsh said yes.
It is, he told the judge, much easier to negotiate with the Yukon government when you have a court order on your side.
The Ross River Dena Council is one of three Yukon First Nations which do not have a land claim settlement. The Taku River Tlingits are also without a settlement.