Colville Lake caribou court challenge begins in N.W.T.

A Northwest Territories judge began to hear arguments Tuesday in a case that centres on treaty rights and the best approach to conserve caribou.

Colville Lake — a community of about 161 mostly Dene people and sits north of the Arctic Circle — is challenging a decision by the territory to set a quota on how many caribou hunters can take each year on its traditional territory.

Justice Andrew Mahar listened to arguments from lawyers representing the Colville Lake Renewable Resources Council, Behdzi Ahda First Nation and Ayoni Keh Land Corporation during the first day of what's expected to be a three-day hearing.

Lawyer Senwung Luk, one of four lawyers for the applicants, told the court the case is not about whether caribou are important, or whether caribou need conservation. 

Luk said the case is about whether the treaty rights outlined in the Sahtú Dene and Metis Comprehensive Land Claim Agreement allow for a co-management plan to exist, or confines Colville Lake to what he called "old colonial ways."

The lawyers argued a community conservation plan that was developed in Colville Lake would lead to better outcomes for caribou and would be more consistent with Dene laws and customs.

They also argued that Shane Thompson, N.W.T. minister of environment and natural resources, breached the land claims agreement when he did not provide any reasons for why he rejected that conservation plan. Instead, they argued, the minister decided to continue with a tag and quota system, known as total allowable harvest, for the Bluenose-West caribou herd.

The herd makes up part of the territory's barren ground caribou, which the N.W.T. Species at Risk lists as threatened.

The Bluenose West herd's range includes the area between Great Bear Lake and the Arctic coast around Paulatuk, N.W.T.

A 2021 government survey estimates the herd's population was about 18,440. In 1992, the figure was 112,000, though local leaders have questioned the figures. 

Colville Lake is asking the court to quash the minister's decision and declare that the Colville Lake Renewable Resources Council has the authority under the land claim to manage harvesting on its lands.

Community-based system preferred

The court heard from lawyer Jennifer Duncan — who is originally from Colville Lake and is a member of Behdzi Ahda First Nation — that since time immemorial, the Dehlà Got'įne, the traditional name for the Dene in Colville Lake which means "the most northerly people of the Dene" and "end of the earth people" have relied on caribou and have managed their relationship with the animal using Indigenous knowledge, ancient laws and protocols.

She says the conservation plan was rooted in those laws, including treating the animal with respect, only taking what's needed and ensuring the entire animal is used.

The plan would not set a limit on the harvest. Instead, it would "rely on a community-based system for ensuring harvesting is sustainable, and happens in a culturally appropriate and respectful way," according to court documents filed by the applicants. 

"Within this community-based system, there is no 'individual' harvest — participants harvest as part of the collective, and to meet community needs."

The plan would allow for bans and fines if harvesters were found to be in breach of the rules.

The lawyers argued a total allowable harvest is supposed to be an option of last resort and the local plan was a viable alternative. The decision to impose a total allowable harvest they said was unilateral and without justification.

The judicial hearing will continue this week, with lawyers for the Sahtú Renewable Resources Board, the body that made the recommendation to the minister to use the locally developed plan, expected to make submissions, along with lawyers representing the government of the Northwest Territories.

Lawyers for the Inuvialuit Game Council, which supports the minister's decision, will also make submissions.

The Sahtú Renewable Resources Board and the Inuvialuit Game Council are interveners in the court case.