On November 26, 2015 the Supreme Court of Yukon released its decision in Ross River Dena Council v Yukon (Government of), 2015 YKSC 45. The Court confirmed that the Government of Yukon owed, and discharged, its duty to consult before issuing hunting licences and game tags in the claimed traditional territory of the Ross River Dena Council (“RRDC”).
The RRDC is a First Nation, and a part of the greater Kaska Nation, situated at the community of Ross River, near the confluence of the Ross and Pelly rivers. The RRDC has yet to ratify a Final Agreement under Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34, and as a result, the RRDC’s claims of rights and title remain as-yet-unresolved throughout its claimed traditional territory. A portion of the RRDC’s larger traditional territory, the Ross River Area, is of particular importance to the RRDC for trapping, hunting and other forms of subsistence harvesting.
On July 31, 2014, the RRDC filed a Statement of Claim seeking a declaration that the Yukon government has a duty to consult the RRDC before issuing hunting licences and seals (more commonly referred to as “tags”) under the Wildlife Act, RSY 2002, c 229. The licenses and tags at issue authorize non-RRDC hunters to hunt big game animals in the Ross River Area.
The Yukon government opposed the declaration sought by RRDC. While recognizing that it had a general duty to consult the First Nation, the Yukon denied it had a specific duty to consult the RRDC prior to issuing hunting licences and tags each year. Yukon argued it had already consulted regularly on hunting, trapping and related matters as part of its overall management of wildlife and wildlife habitat.
The RRDC’s demand to be consulted follows on its recent win in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 (CanLII), leave to appeal to SCC refused, 35236 (September 19, 2013) (“RRDC #1”). In RRDC #1, the Yukon government denied that it had a duty to consult the RRDC prior to allowing mineral claims to be staked in the Ross River Area pursuant to the Quartz Mining Act, SY 2003, c 14. The Court of Appeal of Yukon granted a declaration to the RRDC stating that the Yukon government was obligated to consult the First Nation prior to granting quartz-mineral claims in its claimed traditional territory. A summary of the decision is available here.
Decision on the RRDC’s Application
Annual issuance of hunting licences and game tags triggered the duty to consult
The court rejected the Yukon government’s argument that no duty to consult had been triggered by the issuance of hunting licences and tags within in the claimed traditional territory of the RRDC. The Court held that duty to consult had been triggered for the following reasons:
Crown knowledge: Yukon knew of RRDC’s asserted Aboriginal rights due to its long history of negotiations with RRDC and its admissions at trial and in RRDC #1. As a result, the RRDC did not need to present Yukon with any particulars in order for Yukon to have knowledge of its asserted rights.
Crown conduct: While the annual issuance of licences and tags is an administrative task that does not require a discretionary decision, when considered in the context of the Yukon wildlife management regime, it constitutes Crown conduct capable of attracting the duty to consult.
Potential impact: The annual issuance of licences and tags has the potential to adversely affect the RRDC’s claimed Aboriginal title and right to hunt because it allows licenced hunters to kill wildlife in the Ross River Area, which potentially impacts the amount of wildlife available for the subsistence harvest of the RRDC. In reaching this decision, Justice Veale reaffirmed that the threshold for triggering the duty to consult is reached when the Crown has knowledge of an activity that might adversely affect an asserted Aboriginal right. Material evidence of a potential adverse impact on asserted rights is not required.
Yukon government discharged its duty
After finding that a duty to consult had been triggered, the court decided Yukon had discharged its duty. The Court reached this decision primarily on the basis of the government’s unchallenged evidence. Unlike in RRDC #1, where there had been no consultation in the context of mining claims and Class 1 mineral exploration activities, the Court found that the Yukon government had made continuing and extensive efforts to consult RRDC about wildlife management in the Ross River Area, even though the evidence did not establish that the Yukon government consulted on a regular and predictive basis. The court also found that the Yukon government had initiated species-specific consultations prior to issuing licences, tags and guiding permits for the Finlayson Caribou Herd, Itsi Mountain Goats and Faro Upland Moose. These facts led the Court to conclude that the Crown had generally satisfied the duty to consult and where appropriate accommodate RRDC.
Advisory opinion in lieu of declaratory relief
The Court refused to grant the declaration sought by the RRDC. The Court held that the Yukon government had substantially consulted and accommodated the RRDC in the Ross River Area in the past, and should continue to do so in the absence of a judicial declaration. However, the RRDC did not leave the Court empty-handed. Justice Veale advised that it would be beneficial for the Yukon government to do precisely what the RRDC requested:
 …[I]n my view there would be benefit to convening regular and predictable, i.e. annual, consultations with RRDC at the time that Yukon considers its annual hunting regulations. It strikes me that this would be an effective and reliable way of ensuring that RRDC’s claims to title and hunting rights within the Ross River Area are recognized.
Whether the Yukon government chooses to act on Justice Veale’s advice remains to be seen.
For the second time in three years the RRDC has asked a court to rule that the Yukon government failed to consult the RRDC on land use decisions in its claimed traditional territory. In this most recent case, the Court sided with the government, finding the duty to consult had been acknowledged and performed. Justice Veale’s decision is a cautionary reminder to industry and government that the trigger for the duty to consult is low, and that a proactive consultation strategy and a robust consultation record provide a strong defence should a dispute finds its way to the courts.