Supreme Court of Canada –  3 S.C.R. 103
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)
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)
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?
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).
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
Larry Paulsen’s Land Grant Application
Land Grant Decision
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.
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.
McLachlin, Binnie, Fish, Abella, Charron, Rothstein, Cromwell
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.
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.
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.
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.
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