Recent court decisions have been clear that the Yukon government has a duty to consult with affected First Nations when disposing of land within traditional territories. Whether you like it or not, this is the world that we live in, and it is time the government moved forward and created a consultation regime that lays out the scope of consultation required.
The goal here is to establish certainty, and the most efficient way to accomplish this goal is to, in partnership with First Nations, enshrine the scope of required consultation in a singular piece of legislation.
By way of historical summary, in 2010 the Supreme Court of Canada, in Beckman v Little Salmon/Carmacks First Nation, issued a decision wherein the court made it clear that the Yukon government was required to consult with the Little Salmon/Carmacks First Nation when issuing agricultural land grants within the First Nation’s traditional territories. The court found that the duty to consult existed even though the First Nation had surrendered aboriginal title to the affected area pursuant to its final agreement.
The rationale for the decision is that the First Nation, by virtue of the final agreement, retains certain aboriginal rights in the traditional territories that may be disturbed by the disposition of the agricultural land grants.
While the First Nation had surrendered aboriginal title in the land itself, the right to pursue traditional activities in the traditional territories are guaranteed by the final agreement. The duty to consult is rooted in the continued existence of aboriginal rights in the traditional territories and the possible disturbance of same by the government’s disposition of land.
In this case the courts found that while a duty to consult existed, the government had met that duty and that the disposition of the land was lawful.
Following Beckman, the Yukon Court of Appeal issued a decision in Ross River Dena Council v Government of Yukon in 2012 finding that the government must consult before mineral claims could be staked in the traditional territory of the Ross River Dena Council. In this case, the First Nation had not settled its land claim, and therefore never surrendered aboriginal title within its traditional territory.
As mineral tenure has been determined to form part of aboriginal title, the issuance of mineral claims within Ross River’s traditional territory was found to infringe on the First Nation’s aboriginal tenure and therefore such disposition required consultation.
They key issue identified by the courts in both cases is that there must be a process of consultation in place before disposition of land with the traditional territories of settled or unsettled First Nations. The appropriate level of consultation required will shift depending on the seriousness of the disposition.
Given such clear direction from the courts, I would suggest that the government begin identifying appropriate consultations processes for given situations and then enshrine the processes under one piece of legislation. For the sake of this article let’s call the proposed bill the First Nations Consultation Act.
The purpose of the First Nations Consultation Act would be to enumerate the specific consultation process required when the government is faced with the disposition of land within traditional territories. By legislating the process the government creates a clear and transparent system for the disposition of land, which in turn leads to a certainty in the marketplace as a whole.
This would have the benefit of having the government deal with the processes under one piece of legislation, rather than scattering the consultation processes across differing laws.
Dealing with the issue piecemeal is a recipe for inconsistent legislation and endless negotiations. For example, dealing with a separate consultation protocol concerning mineral staking within the Ross River First Nation’s traditional territory means that the Yukon government will have to have that same conversation with at least all the other unsettled First Nations. It makes more sense to develop one consultation regime concerning mineral staking in traditional territories throughout the Yukon.
The court has already provides some guidance on the issue of appropriate consultation. In the Little Salmon/Carmacks case, the court blessed the government’s current approach to consulting on agricultural grants. This means a piece of the puzzle already exists – all that is required is that the government expand on that base and build a consultation regime, ideally in partnership with First Nations.
As the development of the consultation processes is, and will continue to be for some time, a work in process, it is important to build the legislation so that it is easily added to and revised. The consultation processes themselves could be found in the regulations to the First Nations Consultation Act, meaning that the responsible minister would have the authority to build new consultation systems as new situations presented themselves.
In the end it may require a court to bless the legislated processes, but at least the issue will be put to bed and Yukon will have a vehicle by which to deal with the issue of consultation within traditional territories.
The prey we are chasing in this exercise is certainty. One law containing the different consultation processes blessed either by First Nations or the court will bring certainty back into our mining and land disposition systems.
Given the current uncertainty in both of those systems, it is time the government moved forward on a First Nations Consultation Act.
Graham Lang is a Whitehorse lawyer and long-time Yukoner.