aboriginal treaties are not "complete codes" – Supreme Court confirms duty to consult independent of treaty obligations (part II of II) 


December 2010

Aboriginal Law Bulletin

Jason J. Annibale, Amanda Klein

Governments negotiating treaties and corporations doing business with aboriginals where treaties are at play take heed. Treaty provisions alone do not determine the appropriate level of consultation with aboriginals. While provisions addressing consultation obligations can shape consultation processes, the appropriate level of consultation is ultimately a matter of law.

As the Supreme Court of Canada recently confirmed in Beckman v. Little Salmon/Carmacks First Nation, the duty to consult with aboriginals exists independent of treaties and is part of the legal framework in which treaties are interpreted and performed.

facts and judicial history

In the 1990s, the Little Salmon/Carmacks First Nation ("LSCFN") finalized its treaty with the Canadian federal and Yukon territorial governments (the "Treaty"). Spanning over 400 pages, the Treaty was one of eleven treaties under an umbrella agreement signed by representatives of all of the Yukon First Nations following 20 years of negotiations. Among other things, the Treaty protected LSCFN's ability to hunt and fish over vast lands, portions of which the Crown was simultaneously empowered to surrender to private citizens. The Treaty also provided for consultation processes in particular circumstances.

In 2001, a Yukon Resident named Larry Paulsen submitted an application for an agricultural land grant to the territorial government authority pursuant to a pre-Treaty governmental policy (the "Paulsen Application"). The plot of land at issue in the Paulsen Application formed part of the LSCFN's traditional territory and was subject to the Treaty.

The Paulsen Application travelled through four levels of governmental review and approvals between 2001 and 2004. The third of these review bodies, the Land Application Review Committee ("LARC"), received the Paulsen Application in 2004.

LARC scheduled a meeting to discuss the Paulsen Application and invited the LSCFN to participate. The LSCFN submitted a letter of opposition to the Paulsen Application in advance of the meeting but did not attend. Despite their non-attendance, LARC considered the First Nation's concerns in deciding to recommend approval of the Paulsen Application.

David Beckman, the Director of Agriculture Branch, Yukon Department of Energy, Mines and Resources (i.e., the fourth level of governmental review and approval in this case) approved the Paulsen Application, but did not send notification of his decision to the LSCFN. Unaware of the Director's decision, the LSCFN continued to express opposition by way of a series of letters to the Yukon government.

In the summer of 2005, having learned that the Paulsen Application had been approved, the LSCFN commenced an application for judicial review of the Director's decision. The LSCFN claimed that the Director's decision ought to be quashed on the basis that the Yukon government failed to consult with the LSCFN about the Paulsen Application.

The chambers judge found in favour of the LSCFN. The Yukon government appealed to the Court of Appeal where the decision of the chambers judge was reversed. The matter proceeded to the Supreme Court.

the Supreme Court's decision

The Supreme Court unanimously held that the Yukon government had discharged its duty to consult with the LSCFN. In its reasons, the seven-member majority of the Court made two particularly significant points.

First, the duty to consult exists independent of treaties and applies to them as a matter of law. The duty to consult arises from the honour of the Crown, which is always at stake in the Crown's dealings with aboriginals and cannot be discharged or extinguished through treaties. Although a treaty can shape the appropriate scope of consultation, it cannot be a "complete code". The independence of the duty to consult is required to foster the developing relationship between the Crown and aboriginals and promote the objective of reconciliation. In this case, the Treaty's provisions in relation to consultation, the government's right to surrender lands under the Treaty, and the relatively minor impact of the land grant at issue led the Supreme Court to conclude that the appropriate level of consultation was on the lower end of the spectrum and was satisfied in this case.

Second, consistent with prior rulings, the Supreme Court found that governmental regulatory processes can be sufficient to discharge the level of consultation required in the circumstances. A separate process is not necessary. In this case, the Court found that the Yukon government's decision making process was adequate to discharge its particular consultation obligations. The government invited the LSCFN to a meeting to determine factors relevant to the approval of the land grant. Although the LSCFN failed to attend the meeting, the Yukon government appropriately weighed the LSCFN's interests in coming to a decision on the approval of the Paulsen Application.

When considering consultation obligations in the context of existing or developing treaties, the provisions of any treaty can take parties only so far. Understanding the greater legal landscape and the importance that courts place on reconciliation and the fostering of a good relationship between the Crown and aboriginals are essential. The appropriate scope of consultation may be shaped by language used in treaties, but will principally depend on the aboriginal or treaty rights at issue and the extent to which contemplated Crown action adversely affects such rights.
by Jason J. Annibale and Amanda Klein

1 The Supreme Court of Canada recenty released two decisions in relation to the duty to consult with aboriginals. In part I of this bulletin series, we considered the first of these cases, Rio Tinto Alcan Inc v Carrier Sekani, 2010 SCC 43, and the limits to the duty to consult. In part II, we consider the second case, Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, and consultation obligations in the context of a modern treaty.

a cautionary note
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2010