The duty to consult cannot be trumped by obligations laid out in a land-claim agreement, according to a landmark Supreme Court of Canada decision released last Friday.
But both parties involved in the case – the Yukon government and the Little Salmon/Carmacks First Nation – insist the decision does not erode consultation obligations in land-claim treaties.
“They’re not doing anything that is going to upset the treaty process,” said Karyn Armour, the assistant deputy minister of the Land Claims and Implementation Secretariat.
“It’s just given us further clarity and further definition around consultation.”
The case was a dispute over whether the Yukon government had properly consulted the First Nation in granting a farming lease on land near an aboriginal man’s trapping concession.
But the case was the first chance for the court to define the relationship between two major legal ideas in modern aboriginal law – the duty to consult and land-claim treaties.
In the Yukon, 11 of 14 First Nations have signed agreements intended to define the political relationship between the First Nation, the Yukon government and Ottawa.
They include myriad ways of ensuring First Nations are included on decisions affecting their land, resources or members.
Wildlife management boards and the Yukon Environmental and Socioeconomic Assessment Board are examples of this consultation process.
But in 2004, the Supreme Court of Canada introduced a legal principle called the duty to consult.
In that case, which involved the Haida Nation, the court declared governments must consult First Nations on decisions affecting them to preserve the honour of the Crown.
Until Friday, the clash between those two principles had not been addressed by Canada’s highest court.
“The issue is where does consultation requirements sit in a modern day treaty situation where the parties have defined most of their relationship,” said Tom Ullyett, assistant deputy minister of legal services in the Justice Department.
Enter Larry Paulsen.
The Carmacks resident applied for 65 hectares of farmland from the Yukon government in 2001.
The property was crossed by a trapping concession belonging to a member of the Little Salmon/Carmacks First Nation, which signed a land claim in 1997.
The Yukon government’s agricultural branch looked up the treaty and followed the required 30-day notification informing the First Nation of the lease application.
The First Nation didn’t respond and the lease was granted.
That provoked a court challenge from the First Nation, which argued the government had a duty to consult on a land lease.
The Yukon countered the land claim agreement addressed consultation and the duty to consult doesn’t exist beyond it.
The Yukon’s Court of Appeal ruled governments have a duty to consult beyond a land claim, but decided the Yukon government did not breach its consultation obligations.
Both the First Nation and the territory appealed the decision to the Supreme Court of Canada.
The Supreme Court heard the arguments last November.
After a year of deliberation, all nine justices published their decision last Friday.
“They only sit in a quorum of nine on the most important decisions,” said Ullyett, the Justice Department’s assistant deputy minister.
The 65-page decision upholds the Yukon Court of Appeal’s decision, providing more depth and reasoning.
The majority opinion was drafted by seven of the justices, while the other two judges released a dissenting view.
“They all came to the same result, but they got there a little bit differently,” said Ullyett.
In practice, the Yukon government was right – it followed the rules and ensured the First Nation was consulted.
But in principle the Little Salmon/Carmacks was right – the duty to consult exists beyond a land claims agreement.
The judges disagreed about when the duty to consult kicks in.
“Seven of the judges found that, in most cases there will be a consultation requirement outside of a treaty arising out of a legal principle called the honour of the Crown,” said Ullyett.
So, there is always a duty to consult – the government cannot contract itself out of the obligation.
“But the two concurring judges found that with respect to consultation requirements outside of a treaty, they found that it (exists) only if there’s a gap in the treaty,” he said.
The Yukon won a small victory in the Paulsen case, but the bigger issue is the supremacy of the duty to consult.
Yukon officials are not worried about the decision’s negative impact on treaties.
“We went to the court seeking clarity and we got clarity,” said Ullyett.
It’s normal for the land claim treaties to be reinterpreted by the courts, he said.
“Let’s not forget that the final agreements are constitutional documents,” he said.
“Canada, like most countries, has a long history of having the courts interpret different parts of the constitution.”
The more these documents get interpreted, the better, said Armour.
SDLqWhat the Supreme Court has done in the decision is preserve the treaty process,” said Armour.
The decision is not a rebuke of the treaties, said Little Salmon/Carmacks First Nation lawyer James Cody.
“It’s not as simple as saying we’ve reopened the final agreements,” said the lawyer for the Boughton Law Corporation.
“What the court has said is that the modern treaty is going to be applied in a manner that upholds the honour of the Crown with all the principles that flow from that. But it will be done with more precision on issues like lands and rights
“It’s a balanced decision.”
Contact James Munson at