The Yukon government did not properly consult before approving a 65-hectare agricultural lease on First Nation traditional territory, Supreme Court Justice Ron Veale found in a judgment released last week.
“There must be a dialogue on a government-to-government basis and not simply a courtesy consultation,” he wrote in a 44-page judgment.
Veale also quashed the 2004 Yukon government decision, which granted Larry Paulsen access to the land.
Paulsen applied for the land to grow hay, raise livestock, spot-harvest timber and construct a barn, fences, storage facilities and corrals.
But the area, located about 40 kilometres north of Carmacks near McGregor Creek, is near the First Nation’s settlement lands.
It also overlaps 0.5 per cent of trapline No. 143, owned by Little Salmon/Carmacks elder Johnny Sam.
The First Nation said it was not consulted before the government approved the application.
It also asserted the decision could have adverse effects on the elder’s trapline, the surrounding environment and wildlife values and the First Nation as a whole.
In February, Crown lawyers argued the government had no duty to consult the First Nation because it was not spelled out in Little Salmon/Carmacks’ final or self-government agreements.
The government consults with First Nations and other groups through bodies like the Land Application Review Committee because it’s “good policy.”
But Little Salmon/Carmacks lawyer Arthur Pape argued a First Nation has rights that are not outlined in its final agreement.
The treaty is not the end of the process; it’s a step in the process of the government’s reconciliation with First Nations, he said.
And Veale agreed.
“There is no express provision of the final agreement that states the only duty to consult is specified within the final agreement,” wrote Veale.
The final agreement is flexible in “accommodating future constitutional rights as the law develops so as to avoid the pitfall of having an agreement that becomes chipped in stone or rigid in its interpretation,” he wrote.
The government had an obligation to consult with the First Nation, said Veale.
But it did not meet that obligation and it did not properly consider the impact its decision would have on the hunting and trapping rights, the settlement lands and the fish and wildlife management plan in Little Salmon/Carmacks traditional territory.
“I conclude that the duty to consult and, where appropriate, accommodate, was not met because the Yukon government never engaged the First Nation or Johnny Sam in direct consultation to address the First Nation’s rights in the final agreement,” wrote Veale.
“The granting of the Paulsen application immediately removes approximately 65 hectares of Crown land from the right to hunt wildlife for subsistence. It also has the effect of removing 65 hectares from the workable portion of the trapline of Johnny Sam.
“While these impacts may be considered insignificant by some, they go to the heart of what the First Nation sought to protect in its final agreement — its culture and way of life, as expressed in its right to harvest.”
The Yukon government is still analyzing the judgment and has not decided whether to appeal the decision.
In the legislature
The Liberals wasted no time in raising the matter in the Yukon legislature.
Members attempted to use the judgment as an example of the Yukon government’s tenuous relationship with First Nations in the territory.
“The judge was quite stinging in his rebuke of the government’s action … so much for respectful government-to-government relations with First Nations,” said Liberal Eric Fairclough on Thursday.
Yukon Premier Dennis Fentie was unfazed by the comment.
“We do not view this as a stinging indictment or a rebuke or anything of the sort,” he said.
“In fact, we view this as the course of due process, which all in Yukon have the right to access.”
The government will assess the ruling before deciding its next step, added Fentie.