Beckman v. Little Salmon/Carmacks First Nation

Supreme Court of Canada – [2010] 3 S.C.R. 103


Yukon ConsultationHonour of the CrownTreaties
Summary

This decision defines the Crown’s duty of consultation and accommodation in the context of modern treaties. Although modern treaties may be more detailed and precise than historic treaties, the honour of the Crown can dictate that there be consultation and accommodation in the instances where rights are affected and the treaty has no procedural provision.

In this manner, “recent” treaties can “evolve” according to the applicable law in Canada. “Reconciliation in the Yukon, as elsewhere, is not an accomplished fact. It is a work in progress.” (par. 52 of the decision)

Quote

Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past.  Still, as the facts of this case show, the treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract. (par. 10 of the decision)

Issue

Does the Government of Yukon have a duty to consult the First Nation of Little Salmon/Carmacks pursuant to a treaty before approving the land grant of 65 hectares to a resident, Larry Paulsen? If yes, what is the scope of this obligation?

Decision

Despite the lack of an explicit treaty provision for consultation in this case, the government had a legal duty to consult the First Nation notwithstanding the “agreement” between the parties. The terms of the treaty may, however, assist in defining the content of the duty to consult. In this case, the duty to consult was found to be on the lower end of the spectrum.

The First Nation was given notice in advance of Paulsen’s application as well as sufficient documentation. It also had a means of communicating its concerns to the Director, which was done in writing and was addressed during the meeting the LSCFN did not attend (although it had the right to do so). As such, the obligation to consult was fulfilled and the honour of the Crown was thereby preserved (7 against 2).

Parties

Between: David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines and Resources, Minister of Energy, Mines and Resources, and Government of Yukon (the Crown of Yukon)

And: Little Salmon/Carmacks First Nation and Johnny Sam and Eddie Skookum, on behalf of themselves and all other members of the Little Salmon/Carmacks First Nation

Interveners: Canada, Quebec, Newfoundland and Labrador, Gwich’in Tribal Council, Sahtu Secretariat Inc., Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, Council of Yukon First Nations, Kwanlin Dün First Nation, Nunavut Tunngavik Inc., Tlicho Government, Te’Mexw Nations and Assembly of First Nations

Facts

The Treaty

  • The Little Salmon/Carmacks First Nation Final Agreement (the “LSCFN Treaty”) was ratified by the provincial and territorial governments and by the members of the First Nation on July 21, 1997.
  • Pursuant to treaties signed with Yukon, the First Nations of Yukon surrendered their Aboriginal rights to approximately 484 000 square kilometres of territory, in exchange for treaty-defined rights and a certain amount of land. The rights defined by treaty were the access to Crown lands, the harvesting of fish and wildlife, heritage resources, financial compensation, and participation in the management of public resources.
  • The decision maker was David Beckman, who was authorized to grant non-settlement lands subject to treaty provisions.

Larry Paulsen’s Land Grant Application

  • On November 5th, 2001, Larry Paulsen applied for an agricultural land grant of 65 hectares. The application was sent to the Agriculture Land Application Review Committee (“ALARC”), which suggested modifications.
  • On February 24th, 2004, the ALARC recommended that the modified Paulsen application proceed to the next level of review. This level, the Land Application Review Committee (“LARC”), includes representation of First Nations.
  • On July 27th, 2004, the First Nation expressed, in writing, its opposition to the Paulsen application due to the potential effects of trapping, wood-cutting and hunting on the territory, its surroundings, and certain sites of importance to their culture and heritage.
  • On August 13th, 2004, a LARC meeting was held. There were no representatives of the LSFN present. The meeting minutes indicate that the concerns of the First Nation, expressed in writing the 17th of July, 2004, were addressed by the LARC.
  • On September 8th, 2004, upon questioning by the First Nation representatives, government officials indicated that the LSCFN Treaty did not require any consultation beyond those held at the LARC.
  • On October 18th, 2004, the Director approved the Paulsen application and notified him by mail. He neglected to notify the LSCFN of his decision.

Land Grant Decision

  • During the summer of 2005, Susan Davis, a First Nation representative, enquired as to the whereabouts of the Paulsen application at the Agriculture Branch. She was notified that the Paulsen application had already been approved.
  • On August 24th, 2005, the First Nation appealed, in writing, the Mr. Paulsen land grant.
  • On December 12th, 2005, the application for review of the decision was rejected on the grounds that the First Nation had no right to appeal given its status as member of the LARC. The right to appeal is exclusive to applicants and interveners.
  • The First Nation also applied for judicial review of the decision of the Director of the Agricultural Branch.

Arguments

The Crown of Yukon: The LSCFN Treaty provides for multiple situations where the duty of consultation exists, but this is not one of them. Since it is not explicitly mentioned in the Treaty, there is no duty to consult.

 Little Salmon/Carmacks: The decision of October 18, 2004 should be quashed because the territorial government did not fulfill its duty of consultation towards the First Nation.

Decision of the lower courts

The Yukon Court of Appeal: The LSCFN Treaty did not exclude the duty to consult. The Government of Yukon had, however, fulfilled this obligation, due to its relatively low content.

Reasons for Judgement

Jury

McLachlin, Binnie, Fish, Abella, Charron, Rothstein, Cromwell

Reason

Modern Treaties

Contrary to historic treaties, recent treaties regarding comprehensive land claims are born of long negotiations between parties having significant resources. Subject to constitutional limitations such as the principle of the honour of the Crown, the conclusions reached by the parties are to be respected when the treaties incorporate the procedure of the duty to consult.

The first step is therefore to determine the obligations of the parties based on the treaty provisions. If the treaty provides for a duty to consult and establishes a procedure to that end, it can be used to determine the scope of this obligation.

Honour of the Crown

The Yukon Treaty is not meant to constitute a “complete code”. The duty to consult stems from the principle of the honour of the Crown, and applies independently of the will of the parties.

The duty to consult is mandated by law, notwithstanding any agreement between the parties. It is part of the legal framework surrounding the treaty, and does not modify the content of the treaty itself in any way.

Consultation

Due to the First Nation Treaty regarding the lands granted, the Director had an obligation to consider the potential consequences of such a grant on the First Nation’s interests, by consulting the First Nation as to the nature and scope of their concerns.

In accordance with the preservation of the honour of the Crown, the consultation is necessary to facilitate the management of the relationship between the government and the Aboriginal community. Nonetheless, given the existence of land grants provided for by the treaty and subsequent legislation, as well as the decision to exclude a procedure of consultation from the LSCFN Treaty, the duty to consult is on the lower end of the spectrum

Accommodation and veto

The First Nation was unfounded in claiming that the territorial government was required to establish a substantive right to accommodation, in addition to a certain procedural protection via consultation. The First Nation does not have a right to veto the assessment process. There is no basis for such a right in the Treaty, the Constitution, or in common law.

The representatives of the First Nation and the Director are not obliged to meet in order to fulfill the obligation of consultation. The consultation was made possible and was carried out within the decision-making process of the LARC.

Consultation of Johnny Sam

Trapper Johnny Sam holds his rights as a member of the First Nation. He was not, individually, a necessary actor in the consultation.

Equity

Procedural equity principles, applicable in administrative law, must be respected towards Paulsen as much as towards First Nations. It would be unfair to have him carry the burden of all the consequences of this case.

Deschamps, LeBel – concurring

The duty to consult stems from the principle of the honour of the Crown.  In the instance that a treaty provides for a procedure of consultation, the honour of the Crown is not violated but instead is linked to the respect of the said treaty.

The unilateral addition of rights and obligations by one of the parties is harmful to the legal certainty of the agreement. Legal certainty cannot exist where a party can renege on its obligations that have been set out by treaty provision.

In the presence of a treaty, the common law obligation of consultation only applies when the parties have not provided for a procedure themselves.

Impact

Since 2004, the duty to consult has required the Crown to consult with Aboriginal groups if any measure to be taken may affect an Aboriginal right. Initially, the Haida case dictated that the obligation only existed when the Crown acted unilaterally.

As a result of the Little Salmon case, the duty to consult has reached a new stage: it is now a component of all modern treaties. Previously, the Mikisew decision recognized the application of the duty to consult despite an old treaty between the parties. In the instant case, the Court confirmed the application of this obligation even if the treaty concluded between the parties was “modern”.

The duty to consult applies independently of the will of the parties. Even if they can determine the content of the obligation and exclude its application in certain circumstances, it is impossible to set aside the application of the principle of the honour of the Crown.

Related Cases

Affirmed: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511

Distinguished from: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 38

Différent from: Rio Tinto Alcan Inc. v. Conseil tribal Carrier Sekani, 2010 CSC 43, [2010] 2 R.C.S. 650


Sources

Lavoie, Natasha et Leboeuf, Sylvain. 2011. Les arrêts Rio Tinto Alcan Inc. et Little Salmon/Carmacks : précisions sur le principe de l’honneur de la Couronne et sur l’obligation de consulter les communautés autochtones. XIXe conference des jurists de l’état. En ligne http://www.conferencedesjuristes.gouv.qc.ca/textes-de conferences/pdf/2011/ . Consulté le 26 juin 2013.

O’Callaghan, Kevin et Gilbride, Bridget. 2010. L’obligation de consulter s’applique aux accords modernes de revendications territoriales; décision de la Cour suprême du Canada dans l’affaire Little Salmon. Bulletin des affaires autochtones. Fasken Martineau. En ligne : http://www.fasken.com/files/Publication/8e2373a2-40c7-4095-bebd-1149aeb74444/0eaaae06-1223-42d9-bb2b-0087918d5356/Presentation/PublicationAttachment/0a0b5f86-734c-4106-90e0-4e469b4a53be/Aborginal_NOV_26_2010_Little_Salmon_FR.pdf. Consulté le 2 juillet 2013

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