The majority of the Supreme Court of Canada (Supreme Court) has ruled in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, that the common law duty to consult rights-bearing Aboriginal communities concerning government decisions that may potentially affect those communities continues to exist despite the presence of a modern land claims treaty. The source of the duty to consult is external to the treaty. Although the modern treaty in this case provided for numerous consultation mechanisms for various circumstances, the majority of the Court rejected the "negative inference" argument that consultation was only required where explicitly set out in the treaty. The Court also reaffirmed that administrative law principles and procedures can accommodate constitutional Aboriginal rights and satisfy the Crown's duty to consult.
In 2001, an individual applied for an agricultural land grant on lands that bordered the Little Salmon/Carmacks First Nation (LSCFN) settlement lands in Yukon. The settlement lands were established under the LSCFN Final Agreement (Treaty) in 1997. The Treaty included the right to subsistence hunting and fishing within the LSCFN traditional territory, including the area subject to the proposed grant.
The application was considered by Land Application Review Committee (LARC) in 2004. The LSCFN submitted a letter to the LARC opposing the application because it overlapped a small portion of a LSCFN member's trapline, and could affect timber, wildlife and culturally significant locations. Despite receiving notice, the LSCFN did not attend the LARC meeting that considered and recommended approving the application. Later that year, the application was approved by the Director of the Agriculture Branch of the Department of Energy, Mines and Resources. The approval was the subject of, ultimately, judicial review, appeal, and cross-appeal proceedings.
The LSCFN took the position that, in considering the land grant, the government proceeded without proper consultation and that their concerns had not been taken seriously. The LSCFN argued that the Crown's duty to consult and accommodate required the Director to "work with the [LSCFN] to try and understand what the effect will be, and then [he has] to try and minimize it." The LSCFN also argued that administrative law principles did not provide an appropriate tool to address Aboriginal interests in these circumstances.
The Yukon government argued that the 435-page Treaty exclusively set out where consultation was required and where it was not with respect to traditional territory, and in the absence of a specific consultation obligation, no other duty to consult arose.
The majority of the Supreme Court ruled that, although it is important to look at the Treaty to determine the parties' respective obligations and whether some form of consultation is provided for, it is not a "complete code." The Crown's duty to consult the LSCFN arises outside the framework of the Treaty and, given both the "special relationship" between Aboriginals and the Crown and the overarching goal of reconciliation, the Treaty should not be read "in an ungenerous manner or as if it were an everyday commercial contract." The Supreme Court acknowledged, however, that institutions created by the Treaty (such as the Yukon Environmental and Socio-Economic Assessment Board, which had not yet been established at the time of the application) could potentially satisfy the duty to consult and that, in some circumstances, the honour of the Crown may not always require consultation.
The majority found that since the LSCFN had an express treaty right to hunt and fish on their traditional lands (now surrendered and classified as Crown lands), and since the land grant might adversely affect the traditional economic and cultural activities of LSCFN, the Yukon government was required to consult to determine the nature and extent of such adverse effects. The entire court ruled that the LARC proceedings had satisfied this duty to consult. The minimal potential effects of the grant application on the LSCFN created a consultation obligation on the low end of the spectrum, which was satisfied by the notice and participation opportunity built into the LARC process. The Supreme Court also specifically rejected the argument that the obligation to consult included an obligation to immediately accommodate and minimize effects.
Implications for Resource Developers
- The Supreme Court expects modern treaties to be administered in a way that "demonstrates an ongoing relationship between the Crown and aboriginal communities," and "promotes the objective of reconciliation," which may conflict with strict adherence to the treaty terms.
- Project proponents, on behalf of the Crown, may be required to consult with aboriginal communities potentially affected by the project despite the absence of specific consultation obligations in land claims agreements.
- Administrative regulatory tribunal processes are legitimate mechanisms by which the Crown may, in appropriate circumstances, satisfy its duty to consult.
- Consultation requirements will likely be on the low end of the spectrum when it is uncertain whether the potential impacts to aboriginal interests are either serious or probable.
- A consultation duty that arises from facts that are not likely to have significant effects on the aboriginal community is not likely to result in a further duty of accommodation.
Shawn Denstedt is a partner who focuses on environmental, regulatory and aboriginal law issues.Terri-Lee Oleniuki is an associate who focuses on project-related issues concerning natural resource development with a specialization in regulatory, environmental and Aboriginal law issues. Matthew Keen is an associate who practices environmental, energy and regulatory law.
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