• Supreme Court: Common Law Duty To Consult Can Be Applied To Modern Treaties
  • December 27, 2010 | Author: Pierre-Christian Labeau
  • Law Firm: Norton Rose OR LLP - Quebec Office
  • In the context of a modern treaty, are the Crown's duties to consult limited to those specified in the treaty? Is there a duty that is independent of the treaty provisions? The answers to these questions were at the centre of a dispute opposing the Little Salmon First Nation ("First Nation") and the Government of Yukon.[i] The dispute stemmed from the Yukon's decision to transfer 65 hectares of public land to an individual for agricultural purposes. The land in question forms part of the First Nation's traditional territory, to which its members have a right of access for hunting and fishing rights recognized in a 1997 land claims agreement between Canada, the Yukon and the First Nation.

    In this case, the First Nation did not claim that the land grant violated its treaty right; instead, it contended that the Yukon had granted the land without proper consultation and without proper regard to the First Nation's concerns.  The territorial government responded that the agreement was a complete code and that no consultation was required because the duty to consult was not specifically included in the agreement. The Yukon had, in fact, consulted the First Nation under an agricultural policy that predated the treaty.

    Justice Binnie, for the majority,[ii] explained that the duty to consult is intended to uphold, and is an adjunct to, the honour of the Crown. It is imposed as a matter of law, irrespective of the parties' agreement. It does not affect the agreement itself; it is simply part of the essential legal framework within which the treaty is to be interpreted and enforced. Justice Binnie states that the duty to consult plays a supporting role and therefore the government and Aboriginal parties can decide to exclude consultation in specific situations or agree on a particular consultation process. This decision will be accepted by the courts where it upholds the honour of the Crown.  

    Justice Binnie dismissed the Yukon's claim that when consultations are not specifically included in the treaty, the duty to consult is excluded. Even if the Yukon could make a grant of its lands, the members of the First Nation would still retain their right of access to the land to practice their traditional activities. The grant of proprietary claims on public land could have a detrimental effect on the rights protected by the treaty. The honour of the Crown required the Yukon to consult the First Nation before agreeing to the land grant.

    In this instance, Justice Binnie felt that the Yukon had discharged its duty because the First Nation was consulted as part of the review process for Crown land applications. He pointed out that, in accordance with the Taku River decision,[iii]  a forum created for other purposes may satisfy the duty to consult if, in substance, an appropriate level of consultation is provided.

    Justice Binnie felt that the treaty did not give rise to a duty to accommodate, as the purpose of consulting with the First Nation was to ensure that the Yukon's decision was properly informed. The consultation was required to help manage the important ongoing relationship between the government and the First Nation in a way that upheld the honour of the Crown and promoted the objective of reconciliation.

    This decision was highly anticipated by government officials and is in keeping with the logic of the Mikisew ruling,[iv] in which it was decided that the Crown had to consult with Aboriginal peoples who were signatories of numbered treaties even if it was not specifically required to do so under the treaties.

    Governments who have signed modern treaties with Aboriginal peoples can no longer contend that the only duties to consult are those specifically included in the treaties. Because relations between the Aboriginal peoples and the governments are grounded in the honour of the Crown, governments must consult with the Aboriginal peoples when considering decisions that could have a detrimental effect on the rights recognized in the treaty. Could the parties agree in a treaty to limit the duty to consult to the circumstances set forth in the treaty? Justice Binnie seems to admit that they could, although the Courts could intervene to ensure that such a decision by the parties is consistent with the maintenance of the honour of the Crown.

    Proponents of projects in territories covered by modern treaties are well-advised to work closely with the governments in order to determine whether, beyond the treaty provisions, additional consultations are necessary to uphold the honour of the Crown. However, if they are necessary, they usually will not be very rigorous where the treaties authorize the Crown to take lands or allow development projects.

    [i] Beckman v. Little Salmon/Carmacks, 2010 SCC 53 (CanLII).

    [ii] Justice Deschamps, with the support of Justice Lebel, dismissed the Yukon's appeal, but for different reasons. She seems to admit that a treaty can override the duty to consult, although the individual right holder may contest a government decision by invoking general administrative law principles such as procedural fairness.

    [iii] Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550.

    [iv] Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388.