SOMBA K'E/YELLOWKNIFE - The question of whether the territorial government is within its legal right to restrict aboriginals from hunting caribou will have its day in court May 19.

Using the Legal Questions Act, Justice Minister Jackson Lafferty has asked, "Does the GNWT have legislative authority (under the NWT Act) to regulate subsistence harvesting of barren ground caribou by aboriginal people?" - NNSL file photo

Government lawyer Martin Goldney was in court Friday for a first appearance, where he addressed the question the government has put before the Supreme Court of the NWT. Goldney said the GNWT plans to have a final briefing on the government's position available for the courts by early April.

Using the Legal Questions Act, Justice Minister Jackson Lafferty has asked, "Does the GNWT have legislative authority (under the NWT Act) to regulate subsistence harvesting of barren ground caribou by aboriginal people?"

Lafferty announced he would seek the legal ruling after considerable debate in the legislative assembly about the territorial government's ability to control aboriginal hunters. The Department of Environment and Natural Resources (ENR) imposed an emergency ban last January on hunting Bathurst herd caribou in a 70,000 square km region north of Yellowknife due to a rapid decline in numbers. A 2009 survey put the number of Bathurst caribou at 32,000. That's down from close to 186,000 in 2006.

A group of lawyers sat before Justice John Vertes Friday representing both government and aboriginal interests in the matter. The Tlicho, Sahtu, Gwich'in, Inuvialuit and Dene Nation were all represented, along with the Attorney General of Canada.

"Canada is taking due notice to what is going on here today," said lawyer Andrew Fox, representing the Attorney General of Canada. He added once the final briefing is prepared the Attorney General's office will have a better understanding of the GNWT's position.

Jean Teillet, the lawyer representing the Tlicho government, said her clients are considering a motion asking the court not to hear the question.

"We don't think its helpful," she said of the question.

The no-hunting zone in particular will be a "moot" point by the time the issue is back in court in May, according to Teillet, as the ban will have expired by then.

"The question might actually cause some mischief," she said.

Teillet said with the Wek'eezhii Renewable Resource Board set to meet next week in Behchoko to hear both sides of the caribou debate which is centred around the joint proposal put forward by the territorial and Tlicho governments, the GNWT shouldn't be bringing the issue to the courts.

"The GNWT shouldn't be acting unilaterally, they should be working together," she said.

Wildlife officers working for the government have seized caribou carcasses from several aboriginal hunters since the ban went into effect. That meat has since been distributed to residents of Ndilo and Dettah.

Environment and Natural Resources Minister Michael Miltenberger said the GNWT's authority to ban the aboriginal hunt comes from the NWT Act, which makes reference to "the preservation of game in the territories" and "ordinances restricting or prohibiting Indians or Inuit from hunting for food, on unoccupied Crown lands, game other than game declared by the Governor in Council to be game in danger of becoming extinct."

As further proof of its jurisdiction over hunting, the GNWT has also previously cited a subsection of the NWT Act from 1960 that lists barren ground caribou as being in danger of becoming extinct.