Lawyer says N.W.T. Court of Appeal decision on caribou plans follows trend

A sign prohibiting shooting from the highway on the winter road outside Colville Lake, N.W.T., pictured in January 2020. (John Last/CBC)

By RCI, CBC News

A constitutional lawyer said a recent court of appeal decision on Colville Lake, N.W.T.’s caribou conservation plan is following a trend in Canadian courts.

The N.W.T. Court of Appeal dismissed an appeal by the territorial government, ruling that Colville Lake essentially had stewardship of the land surrounding the community, and that it was appropriate for the community to use traditional knowledge when coming up with a viable caribou conservation plan.

Ryan Beaton is a Vancouver-based lawyer who specializes in constitutional law and in particular Aboriginal law.

He said this decision follows a precedent that has been set in recent court cases.

The way in which the court reached this decision was to accept that Indigenous laws should be respected and applied here, and that’s part of an interesting trend in Canadian courts recognizing the application of specific Indigenous laws and Indigenous legal orders in Canada, Beaton said.

Beaton said the decision could affect future court cases involving Indigenous law as the more often courts rule on such issues, the easier the decisions become. He said this could particularly apply to any further disputes on this particular treaty, the Sahtu Dene and Métis Comprehensive Land Claim.

They can invoke this decision and say, ‘look, the courts have clearly spoken that Indigenous law should inform the rights recognized under the treaty, he said.

Beaton said the Colville Lake decision is another example of how far the courts have come in terms of respecting Indigenous laws.

“Go back 100 years, in the 1920s, there’s a somewhat infamous decision out of the County Court of Nova Scotia in which the court rejected a claim of Indigenous treaty rights, saying, you know, ‘treaties were not really binding agreements because Indigenous peoples were uncivilized. They didn’t have sovereignty over their territory,’” he said.

Beaton said that began changing with a decision in the 1980s.

“The Supreme Court there said there that kind of language has no place anymore in Canadian law. It’s racist. It belongs to a past that we’ve moved beyond.”

Darwin Hanna is a lawyer with Vancouver-based firm Callison and Hanna who represents different Indigenous governments, including N.W.T. Métis Nation. He is Nlaka’pamux Nation and works in particular on issues of self-government and self-determination.

He said the Colville Lake appeal case reflects a legal focus on co-management, meaning the territory and the Indigenous governments are expected to work together.

Here the court of appeal correctly indicates that the legal structure is based on co-management, and that co-management involves seeking the input of the affected community through meetings. In listening to their perspective, in having the plan influence of Dene law, he said.

Cynthia Callison is also a lawyer with Callison and Hanna and is a member of the Tahltan Nation, which is Dene from the Stikine River Watershed in northwestern B.C.

She said with caribou being so important to the Dene, it’s good that the courts recognize traditional knowledge should be incorporated.

I think that it’s important to have Indigenous people as part of the decision-making process — the knowledge that they have from the land, the ecological knowledge, and also their longstanding history of being able to harvest wildlife and not to endanger the species, she said.

The N.W.T. government said last week it’s considering the decision before determining its next steps.

There is a possibility the case moves to the Supreme Court, but both Beaton and Hanna said they think that’s unlikely.

The broad principle at issue here, that Indigenous law should inform treaty interpretation, that’s essentially settled. There’s not a question of national importance raised by this case that the Supreme Court needs to step in and clarify, Hanna said.

With files from Julie Plourde