SCC Confirms that 80% of Success in Life is Showing Up: Beckman v Little Salmon/Carmacks First Nation
The Supreme Court of Canada (“SCC”) has ushered in a new generation of land claims deals. Like an annual checkup at an overworked General Practitioner’s office, these land claims deals are formal, brisk, and to the point – and if you miss the meeting, you are charged a small, yet potentially aggravating, stipend. Beckman v Little Salmon/Carmacks First Nation,  3 SCR 103 discusses the duty of the Crown to consult with the First Nations during land claims agreements, and the interpretation and implementation of modern land treaties with respect to that duty.
The “duty to consult” doctrine in Canadian law was first developed by the SCC in Haida Nation v British Columbia (Minister of Forests),  3 SCR 511 [Haida] and has been discussed comprehensively by my colleague here. In essence, Haida says that governments making decisions that may have an impact on Aboriginal rights, or treaty rights, have a duty to consult with the potentially affected communities, even before those rights have been proven in court or in a negotiation process.
Little Salmon/Carmacks confirmed that they were consulted in a timely and informative manner. They did not send representatives to the meeting in which their concerns were to be addressed, but instead sent a letter.
The Director (Agriculture Branch) of the Yukon Department of Energy, Mines and Resources weighed the concerns of the Little Salmon/Carmacks people with the needs of the territory as a whole. The SCC found he discharged his duty to consult, and exercised his discretion appropriately.
Traplines in Yukon: The Path Less Travelled
This Aboriginal group became self-governing in 1997. They have a population of about 500, half of which lives outside the community. They have returned to a more traditional form of government, and elections are held for office of the Chief only, and members of the council are elected by the Crow and Wolf moieties.
In 1997, the Little Salmon/Carmacks First Nation signed a land claim agreement with the governments of Canada and the Yukon Territory after 20 years of negotiation. Under the treaty, called the “final agreement,” the First Nation people have the right to access certain Crown land for subsistence hunting and fishing activities.
In 2004, the Yukon Government transferred 65 hectares of this land to a non-native individual, “P,” who had submitted an application for an agricultural land grant in November 2001. The land falls within the trapline of “S,” a member of Little Salmon/Carmacks, who uses the land for subsistence hunting and fishing, and to teach his grandchildren about the traditions of his people. Overall, this disputed segment, identified as 65H, represents 1/3rd of 1% of S’s trapline.
The Path More Travelled: the Road to the SCC
On January 29th, 2009, SCC granted leave to appeal to the Government of the Yukon Territory involving the extent of the Crown’s duty to consult with the Little Salmon/Carmacks First Nation case.
The Yukon government’s Land Application Review Committee (“LARC”) considered P’s application at a meeting. It was this meeting, mentioned above, that saw the First Nation group decline their personal invitation. In lieu of attendance, the Little Salmon/Carmacks people submitted a letter of opposition to the transfer. In the end, the Director of the Yukon Department of Energy, Mines and Resources’ Agriculture Branch allowed the application.
On May 27, 2007 the Yukon Supreme Court (“YSC”) found that the transfer of land would have serious impacts on the rights to activities protected under the Final Agreement, and decided that a far more rigorous consultation was the affected First Nation group was necessary to fulfill the Crown’s relevant obligations.
Despite the fact the government solicited the attendance of the group, considered their written submission during the appropriate meeting, and that compensation had been recommended for the affected trapper, the YSC found the duty to consult, and the related upholding of the Crown’s honour, were not met in this situation as a duty to further consult with the Little Salmon/Carmacks people existed in this circumstance. The government’s decision to transfer the land was quashed.
In 2008, the Yukon Court of Appeal allowed the appeal of the Government of Yukon and set aside the order of the YSC, confirming that although the Crown did have a duty to consult in this case, that duty had been discharged in the process leading to the Government’s decision to dispose of the land.
Decision of the SCC – Today’s Land Claims
Above all, what court observers sought in this case was certainty, which is of preeminent importance in all land claims deals. No one wants to invite more litigation with sloppily worded agreements, as noted by the SCC:
The imperative of legal certainty that is central to the negotiation of a modern treaty and that requires a court to defer to the will of the parties must not blind the courts to omissions by the parties. That an agreement is complete cannot be presumed; it must be found to be complete.
While the duty to consult can be clarified in a modern land claims treaty, the Crown cannot contract out of this basic right afforded to the First Nations.
The SCC agreed with the Court of Appeal and held that the duty of consultation was discharged; the court restated Little Salmon/Carmacks’ acknowledgment that it received appropriate notice and information, and that the Director weighed their objections and the response of those who attended the meeting when he approved P’s application. The SCC felt nothing more was required.
In this case, a continuing duty to consult with the members of the Little Salmon/Carmacks is required on part of the Crown when making land grants out of the portion of the Yukon that was surrendered as Crown land.
The treaty sets out the elements of the duty to consult: notice of a matter must be provided in a timely fashion, a reasonable period of time must be allowed for consultation and for the First Nation to prepare its views on the matter and be given an opportunity to present their views to the Government; full and fair consideration must be granted by the party obliged to consult of any views presented.
Consultation is required to help manage the relationship between the government and the Aboriginal community in a way that upholds the honour of the Crown. The tension inherent in this process is that the Crown must make decisions in the interest of Canada as a whole, while abiding by their fiduciary duty to the Aboriginals, and all without being overbearing towards a people that have been granted self-governance. This complicated dance is summed up in this observation by Justice Deschamps, who objected to adding another layer of consultation over and above what was already agreed upon in the final agreement, when she writes:
To allow one party to renege unilaterally on its constitutional undertaking by superimposing further rights and obligations relating to matters already provided for in the treaty could result in a paternalistic legal contempt, compromise the national treaty negotiation process and frustrate the ultimate objective of reconciliation. This is the danger of what seems to be an unfortunate attempt to take the constitutional principle of the honour of the Crown hostage together with the principle of the duty to consult Aboriginal peoples that flows from it.
Treaties can be formed with Aboriginal people that override the common law duty to consult; if there are gaps in the treaty or if the Crown sees the treaty as omitting to address consultation at some point in a land claim deal, the courts can address that gap by imposing a further duty to consult perhaps even individual rights holders. No such gap was found in this case. The provisions of the Final Agreement confirm this conclusion.
On a side note, the SCC judges noted that there were some problems with people’s behavior:
Even if representatives of the First Nation did not attend the August 13, 2004 meeting, it would be expected that the Director would inform that First Nation of his decision within a reasonable time. Nonetheless, the time elapsed after the decision did not affect the quality of the prior consultation.
It is true that the First Nation’s representatives did not attend the August 13, 2004 meeting. They did not notify the other members of LARC that they would be absent and did not request that the meeting be adjourned, but instead submitted comments in a letter. In this circumstance it seems the Director made a reasonable effort to reach out to the group concerned, and, given their total lack of communication or engagement in the process other than the one letter, it seems the behaviour of the Yukon government, although perhaps not ideal, was reasonable in the circumstances.
All interests weighed, I think the Director made the right decision – while the duty to consult exists, it must be noted that it does so within the larger context of fostering good relations with all Canadians. If the Little Salmon/Carmacks people were satisfied with a written submission, then a written submission should be sufficient. If they desired a more thorough and personal consultation than they agreed to with the Crown, the onus to make representations to that effect should shift to them. A more robust consultative process could well have helped avoid this case ever seeing life in a courtroom, and once the basic duty to consult is met by the Crown, there should at least be a sharing of the negotiation burden going forwards, or at least more forward expressions of what people want and need from a negotiation. It is in everyone’s interest.
More than any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly.
– Woody Allen, My Speech to the Graduates