The Supreme Court of the Yukon Territory released its decision in May on a land disposition made by the Director of the Agriculture Branch, Department of Energy, Mines and Resources for the Yukon Government.
On October 18, 2004, the Director had granted an agricultural land application of 65 hectares in the traditional territory of the Little Salmon/Carmacks First Nation and in the area of one of its member's trapline. The First Nation sought to have the Director’s decision set aside for failing to comply with the Crown’s duty to consult and accommodate.
The First Nation had entered into a comprehensive land claim agreement with the Government of the Yukon and the federal government in 1997 (the Final Agreement). While the Final Agreement defines the traditional territory of the First Nation, it does not contain an express requirement for consultation with the First Nation in the event of a disposition or transfer of land in the traditional territory. The Yukon Agriculture Policy provides for First Nation governments to participate in the land application review committee when land applications may affect land management within the First Nations’ respective territories. The Policy also states explicitly that there is no legal obligation to consult with the First Nation in the case of disposition of Crown land in the traditional territory of a First Nation with a final or self-government agreement.
The main issue for the Court to decide was whether the common law duty to consult and accommodate was replaced by the Final Agreement or whether it still applied. The Court concluded that the duty to consult and accommodate is an implied term of every treaty, (historical or modern day). In this case, where the Final Agreement was silent on this specific point, yet the transfer of land had the potential to significantly impact the First Nation’s treaty rights, the Court found it to be appropriate to apply the duty. Based on the fact that no specific consultation had taken place, the Court concluded that the Government of theYukon had failed to comply with the duty.
This decision is important as it indicates that the language of a treaty may need to be reconciled with the common law duty to consult and accommodate in order to determine the applicable consultation obligations.