Aboriginal hunters who defy the N.W.T. government's ban on caribou hunting could find themselves facing an uphill legal battle, says an expert on native rights.
Ken Coates, an historian who wrote a book about the Marshall Decision — which established native fishing rights in Canada — said the Aboriginal right to hunt is protected by the Constitution.
But previous court decisions show those rights can be trumped by a government when conservation is the issue.
He says any legal challenge would likely come down to science versus traditional knowledge.
"What you have at the root of all of this is a huge debate over who gets to make these calls," Coates told CBC News. "Do the aboriginal people who lived closest to the resource and use it have the claim to control it? Or do the biologists basically working for the goverment have the right to make the decision about the vulnerability of the herd?"
Coates said Aboriginal people have the right to ensure their land claims are being respected.
And that there must be adequate consultation - and explanation - if the government is going to excercise it's right to take conservation measures.
N.W.T. Environment Minister Michael Miltenberger said the Tlicho government was consulted from beginning to end about the risks to the herd because of declining numbers.
According to the government's count, the Bathurst caribou herd declined from 186,000 in 2003 to just 32,000 this year.
The hunting ban applies to both aboriginal and non-aboriginal hunters, and the no-hunting zone includes most of the central part of the territory, from the north shore of Great Slave Lake to the boundary with Nunavut.
But Dene National Chief Bill Erasmus said the decision to ban aboriginal hunters from going after caribou is inappropriate.
"They're proposing to restrict us, restrict our way of life," said Erasmus, adding the taking of caribou is a treaty right that cannot be denied an aboriginal hunter. He said other chiefs agree with this position.
"Our chiefs, they're encouraging their people to go hunting. Go for ptarmigans, go for rabbits, if you see caribou and you need some, take what you need."
Erasmus suggested that in government to government negotiations, consultation is not enough, and that consent is required.