The Supreme Court of Canada recently affirmed that the duty to consult will exist even in the context of a modern treaty, but it is likely the duty will be at the low end of the spectrum. In Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, Justice Binnie, writing for the majority of the Court (decision was a 7-2 split), concluded the duty to consult, grounded in the honour of the Crown, forms part of the legal framework which informs treaties – both modern and ancient.

Background

The Little Salmon/Carmacks First Nation ("LSCFN") finalized the Little Salmon/Carmacks First Nation Final Agreement (the "LSCFN Treaty") with the federal and territorial governments in 1996, and ratified the treaty in 1997. It is one of eleven treaties signed with the Yukon First Nations after an approximate twenty year negotiation process. These modern treaties, unlike their historical predecessors, are comprehensive documents drafted to create some delineation of property ownership and governance rights and obligations, and place "Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability" (para. 12). The Court emphasised the distinction, stating: "The eight pages of generalities in Treaty No. 8 in 1899 is not the equivalent of the 435 pages of the LSCFN Treaty almost a century later" (para. 52).

The LSCFN Treaty provided for the "cede, release and surrender" of all the First Nation's claims, rights, and titles to the federal government, but granted an express right to members of the First Nation to hunt and fish for subsistence on their traditional lands. This right was subject to the government's right to transfer surrendered Crown land.

At issue before the Court was an application by a Yukon resident named Larry Paulsen for an agricultural land grant of 65 hectares in an area about 40 kilometres north of Carmacks. The 65 hectares lay within LSCFN's traditional territory and also within Trapline #143, which spans some 21,400 hectares and is registered to a member of the LSCFN.

After a pre-screening, the Paulsen application was forwarded to the Agricultural Land Application Review Committee ("LARC"), which includes First Nations membership. The Director of the Agriculture Branch of the territorial government posted a Public Notice of the Paulsen application and also notified the LSCFN directly, inviting written comments. In July 2004, LSCFN submitted a letter of opposition to the application, citing its effect on the trapline, timber harvesting, the availability of animals to hunt, and on adjacent cultural and heritage sites.

Although the First Nation had representation on the Committee, no LSCFN member attended the LARC meeting regarding the Paulsen application. Minutes demonstrate the attendees considered the concerns raised by the First Nation, finding the 65 hectares minimal, and noting compensation was available for diminishment of a member's trapline. The Director approved the Paulsen application in October 2004, without notifying the First Nation of his decision. Prior to his decision, members of the LSCFN met with representatives of the Agriculture Branch in September 2004 and expressed their general dissatisfaction that their concerns were not being taken seriously. The meeting did not specifically address the Paulsen application. In this context, Agriculture Branch officials had communicated to the LSCFN that they consult on such matters through LARC but they were not required by the LSCFN Treaty to consult on such issues. Meetings and discussions with the First Nation had been conducted, they said, only as a "courtesy". At the trial level the judge used this statement to conclude that any consultation that took place could not be sufficient – as it was only a "courtesy".

It was not until the summer of 2005, after writing numerous letters to the Yukon government expressing its opposition, that the LSCFN learned the Paulsen application had already been approved. Shortly thereafter, the First Nation launched this judicial review.

Majority Decision

Existence of the Duty

The territorial government argued that LSCFN's rights and obligations were fully confined to those in the Treaty, whereas LSCFN submitted the honour of the Crown is always at stake in all Crown dealings with Aboriginal peoples, and as Haida Nation v. British Columbia (Minister of Forests) and Mikisew Cree Nation v. Canada (Minister of Canadian Heritage) made clear, the duty to consult is grounded in the honour of the Crown and exists independent of treaties. The majority of the Supreme Court of Canada agreed with the First Nation, finding the honour of the Crown ensures reconciliation takes place, and reaffirmed its holding in Mikisew — that treaties are an important step toward reconciliation, but not the final step.

Justice Binnie, writing for seven of the nine judges, held that the duty to consult is external to the Treaty and is required to uphold the honour of the Crown, furthering the ultimate goal of reconciliation. The Crown cannot contract out of its duty of honourably dealing with Aboriginal people. Although it was undisputed that the LSCFN Treaty is the "entire agreement" between the parties, the Treaty does not exist in isolation: the duty to consult is part of the legal framework in which it is to be performed so as to uphold the honour of the Crown.

Justice Binnie acknowledged that it may be possible to negotiate a different mechanism within a treaty, other than consultation, stating: "the parties themselves may decide therein to exclude consultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would be consistent with the maintenance of the honour of the Crown." However, the LSCFN Treaty does not describe the process of how Crown lands can be surrendered, or whether consultation would be required, and thus, the majority was unwilling to interpret that silence as implying no consultation was required.

The Court additionally clarified that the trapper himself was exercising a "derivative benefit based on the collective interests of the First Nation" (para. 35) and therefore was not entitled to be consulted individually.

Content of the Duty

The LSCFN Treaty itself set out the agreed elements of consultation as (a) sufficient notice, (b) reasonable time period to respond and an opportunity to be heard, and (c) full and fair consideration of the views presented. The majority found this formulation accords with the "lower end of the spectrum" described in Haida and Mikisew.

The LSCFN argued for more substantial consultation, including accommodation. The Court rejected such an approach, holding:

[14] … The First Nation argues that in exercising his discretion to approve the grant the Director was required to have regard to First Nation's concerns and to engage in consultation. This is true. The First Nation goes too far, however, in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive right of accommodation. The First Nation protests that its concerns were not taken seriously – if they had been, it contends, the Paulsen application would have been denied. This overstates the scope of the duty to consult in this case. The First Nation does not have a veto over the approval process. No such substantive right is found in the treaty or in the general law, constitutional or otherwise.

Finding in this Case

The majority found the decision to grant Mr. Paulsen's application could potentially have an adverse impact on the LSCFN's Treaty right to fish and hunt on the 65 acres granted to Mr. Paulsen, as well as on the surrounding Crown lands to which LSCFN members have a continuing right of access. The majority also found there was at least a possibility the potential impact would be significant. This clearly triggered the duty to consult, but the court placed it at the low end of the consultation spectrum.

In this case, there was no dispute the LSCFN received appropriate notice and information regarding the application, and that the LSCFN responded by way of letter. The First Nation's concerns raised in the letter were addressed by LARC at its meeting, which the First Nation failed to attend. LARC's discussion at the meeting was detailed in minutes that were available to the LSCFN as a member of LARC. Despite the fact this process was characterized as a "courtesy" by the government, it was found to be more than adequate to discharge the government's duty in this case.

Justice Binnie reviewed the capability of regulatory processes, such as the LARC process, to fulfil the duty to consult and found such processes could be sufficient, stating:

[39] Nevertheless, consultation was made available and did take place through the LARC process under the 1991 Agriculture Policy, and the ultimate question is whether what happened in this case (even though it was mischaracterized by the territorial government as a courtesy rather than as the fulfilment of a legal obligation) was sufficient. In Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, the Court held that participation in a forum created for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided.

Minority Decision

Justices Deschamps and LeBel concurred in the result, but disagreed that consultation should extend to activities that impact modern treaty rights where the issue of consultation was dealt with generally in the treaty. It was their view that where the treaty contemplates consultation, the intention of the parties is clear and the honour of the Crown is upheld by the terms of the treaty itself. Justice Deschamps spoke strongly against the majority decision, stating:

[107] To allow one party to renege unilaterally on its constitutional undertaking by superimposing further rights and obligations relating to matters already provided for in the treaty could result in a paternalistic legal contempt, compromise the national treaty negotiation process and frustrate the ultimate objective of reconciliation. This is the danger of what seems to me to be an unfortunate attempt to take the constitutional principle of the honour of the Crown hostage together with the principle of the duty to consult Aboriginal peoples that flows from it.

Implications

The Little Salmon decision operates in conjunction with Haida and Mikisew to confirm that the government is obliged to consult whenever it contemplates decisions or activities that have the potential to adversely impact any Aboriginal right, regardless of where that right originates. Whether the land is covered by a modern treaty, an ancient treaty, or no treaty at all – the duty to consult may still arise and should therefore be front of mind whenever government is considering decisions which may affect the use of land.

However, the Court also clarified two important aspects of the duty to consult:

  • That regulatory processes leading to a decision can be sufficient to meet the duty to consult without separate engagement with First Nations – as long as the process covers off the elements of consultation required (easier when at the lower end of the spectrum of consultation).
  • That regulatory decision-makers are required to balance the rights of the applicant before them with any impacts on rights expressed by First Nations, and the court will respect those decisions, as long as they are reasonable. In this case, the Court found "the Director was simply not content to put Mr. Paulsen's interest on the back burner while the government and the First Nation attempted to work out some transitional rough spots in their relationship. He was entitled to proceed as he did" (para. 87).

The Court has clarified that the honour of the Crown is a constitutional principle that emanates from s. 35 of the Constitution Act, 1982 and therefore it must be applied in all circumstances as part of the general law of Canada. This judgment clarifies that everywhere in Canada – from Labrador to British Columbia and from Ontario to Nunavut – the honour of the Crown applies to dealings between the Crown and First Nations. As a result there are few places, if any, left in Canada where the duty to consult will never arise.