November 2008

Eye on Business

The Yukon Court of Appeal on modern treaties and the duty to consult

By K. O’Callaghan

On August 15, 2008 the Yukon Court of Appeal in Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and Resources), 2008 YKCA 13, became the first appellate-level court to consider the duty to consult First Nations in the context of a modern treaty. The court’s finding that the duty to consult applies in the context of modern treaties means that the duty to consult applies to exploration and mining throughout Canada — from Nova Scotia to British Columbia and north to Nunavut — unless the treaty or land claim agreement expressly provides otherwise.

At issue in the case was a decision by Yukon to transfer lands located within a First Nation’s traditional territory, but outside of its settlement lands under the treaty. The final agreement, signed on July 21, 1997, is a modern comprehensive land claim agreement, but did not expressly deal with post-treaty consultation in these circumstances.

The First Nation challenged a decision to approve an agricultural land application in the traditional territory of the Little Salmon. The Little Salmon sought to set aside the director’s decision for failing to comply with the legal duty to consult the Little Salmon. At the trial level, the Supreme Court of Yukon had held that a duty to consult existed and was not met by Yukon, and quashed the decision.

The application was made to a Land Application Review Committee (LARC), whose membership includes the Yukon First Nations. However, the express policy of the Yukon government was that there was no legal obligation to consult with the First Nation when transferring such lands.

The Little Salmon were notified directly of the application and provided with an information package, but opposed the application due to its effects on trapping and because of heritage and archaeological sites in areas.

The Yukon and Canada argued that there is no duty to consult First Nations in the context of a modern, comprehensive land claims agreement where the government was exercising an express authority granted to it under the agreement. The Court rejected the argument that some distinction could be drawn between modern and earlier treaties, concluding that the duty to consult is a constitutional duty for the reasons expressed in Haida Nation, Taku River Tlingit and Mikisew (all Supreme Court of Canada cases) and that it exists outside and infuses the treaty and governs Yukon’s dealings with Yukon First Nations.

The Court held that reconciliation with First Nations does not end with the signing of a treaty but that it will “inevitably be a long and sometimes difficult process, which will require the good faith efforts of all levels of government — federal, territorial, and First Nations.”
However, the Court held that the duty to consult was at the low end of the spectrum and concluded that the process undertaken by the LARC, notwithstanding Yukon’s policy denying a duty, met the duty to consult. The decision to transfer the lands was upheld.

This case makes clear that the honour of the Crown and the duty to consult “exist outside and infuse” all modern treaties. This is very likely to become an issue at the treaty tables currently underway as the Crown seeks greater certainty.

The series of cases — Haida, Mikisew and now Little Salmon — have extended the duty to consult such that it applies in respect of any land, whether or not it is subject to a treaty. As a result, exploration activities or mine development anywhere in Canada are subject to the duty to consult with and, where necessary, accommodate First Nations.

Kevin O’Callaghan is a partner of Fasken Martineau’s litigation practice focused on aboriginal, regulatory and environmental issues. He has successfully represented a number of mining industry clients in negotiations with cases involving First Nations on aboriginal matters.

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