The Duty To Consult First Nations Under Modern Treaties

By Andrew Brunton
Categories: Blog, First Nations

Where a proponent proposes a land use for Crown lands within a First Nation’s traditional territory, the Crown has a duty to consult the First Nation with respect to the effect on the First Nation’s traditional use of the land.  Proponents are often very engaged in the consultation process, as it is the proponent who stands to gain from approval of the land use.  Cases interpreting the Crown’s duty to consult are divided into three types: (1) those where an Aboriginal group asserts that it has a specific Aboriginal right, but has not yet proved that the specific right exists, (2) those where when an Aboriginal group has established that it has a specific Aboriginal right, but has not entered into a modern treaty with the Crown, and (3) those where there is a modern treaty in place between the First Nation and the Crown.

The most recent Supreme Court of Canada’s decision regarding the duty to consult in the context of a modern treaty is  Beckman v. Little Salmon / Carmacks First Nation.  Little Salmon / Carmacks entered into a treaty with the governments of Canada and the Yukon Territory in 1997 under which Little Salmon / Carmacks members have a right of access for hunting and fishing for subsistence in their traditional territory.  Paulsen applied to the Yukon Territory for an agricultural land grant within Little Salmon / Carmacks traditional territory, and more specifically, within the trapline of one of its members.  The treaty contemplated lands being taken up for agricultural purposes.

Little Salmon / Carmacks argued that in considering the grant to Paulsen, the Crown proceeded without proper consultation, but the Supreme Court of Canada dismissed their appeal.  The Land Application Review Committee had considered Paulsen’s application at a public meeting.  Little Salmon / Carmacks had been invited to the meeting and had submitted a letter of opposition, but did not attend the meeting.

The court concluded that the Crown had met its duty to consult.  In reaching its decision, the majority of the court stated that where a modern land claim treaty has been concluded, the first step is to look at its provisions to determine the parties’ obligations, including any consultation obligations set out in the treaty.  However, the Crown cannot contract out of its duty to consult and its general duty of honorable dealing with First Nations people.  In this case, a duty to consult existed and the Crown was required to consult Little Salmon / Carmacks based on the honour of the Crown.  The purpose of such consultation was to manage the ongoing relationship between the Crown and the First Nations.  The court found that Little Salmon / Carmacks received appropriate notice and information and that the Crown considered Little Salmon / Carmacks’ written submission in reaching its decision to grant the agricultural land application.  In this case, nothing more was required of the Crown.

Although most First Nations in BC have not entered into modern treaties, cases interpreting the duty to consult can also apply to the majority of the Province’s Crown lands for which treaties do not yet apply.

How Pushor Mitchell Can Help

Andrew Brunton is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrew at (250)869-1135.  Our office offers a wide range of legal services to First Nations communities and their members, and to individuals, companies and lenders conducting business with First Nations or on First Nations lands.  Our practice group includes lawyers who have wide range of experiences. For more information on our First Nations Law Practice Group, please visit http://www.pushormitchell.com/service/first-nations.