David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines v. Resources,, 2010 SCC 53

SUPREME COURT OF CANADA Citation : Beckman v.

Little Salmon/Carmacks First Nation, 2010 SCC 53 , [2010] 3 S.C.R. 103 Date : 20101119 Docket : 32850 Between: David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines and Resources, Minister of Energy, Mines and Resources, and Government of Yukon Appellants / Respondents on cross-appeal and Little Salmon/Carmacks First Nation and Johnny Sam and Eddie Skookum, on behalf of themselves and all other members of the Little Salmon/Carmacks First Nation Respondents / Appellants on cross-appeal - and - Attorney General of Canada, Attorney General of Quebec, Attorney General of Newfoundland and Labrador, Gwich’in Tribal Council, Sahtu Secretariat Inc., Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, Council of Yukon First Nations, Kwanlin Dün First Nation, Nunavut Tunngavik Inc., Tlicho Government, Te’Mexw Nations and Assembly of First Nations Interveners Official English Translation: Reasons of Deschamps J.

Coram : McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment : (paras. 1 to 89) Concurring Reasons: (paras. 90 to 206) Binnie J. (McLachlin C.J. and Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring) Deschamps J. (LeBel J. concurring) Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53, [2010] 3 S.C.R. 103 David Beckman, in his capacity as Director, Agriculture Branch, Department of Energy, Mines and Resources, Minister of Energy, Mines and Resources, and Government of Yukon Appellants/Respondents on cross-appeal v.

Little Salmon/Carmacks First Nation and Johnny Sam and Eddie Skookum, on behalf of themselves and all other members of the Little Salmon/Carmacks First Nation Respondents/Appellants on cross-appeal and Attorney General of Canada, Attorney General of Quebec, Attorney General of Newfoundland and Labrador, Gwich’in Tribal Council, Sahtu Secretariat Inc., Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, Council of Yukon First Nations, Kwanlin Dün First Nation, Nunavut Tunngavik Inc., Tlicho Government, Te’Mexw Nations and Assembly of First Nations Interveners

Indexed as: Beckman v. Little Salmon/Carmacks First Nation 2010 SCC 53 File No.: 32850. 2009: November 12; 2010: November 19.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for the yukon territory Constitutional law — Aboriginal peoples — Aboriginal rights — Land claims — Duty of Crown to consult and accommodate in the context of a modern comprehensive land claims treaty — Treaty provides Aboriginal right of access for hunting and fishing for subsistence in their traditional territory — Application by non-Aboriginal for an agricultural land grant within territory approved by Crown — Whether Crown had duty to consult and accommodate Aboriginal peoples — If so, whether Crown discharged its duty — Constitution Act, 1982, s. 35 .

Crown law — Honour of the Crown — Duty to consult and accommodate Aboriginal peoples — Whether Crown has duty to consult and accommodate prior to making decisions that might adversely affect Aboriginal rights and title claims. Administrative law — Judicial review — Standard of review — Whether decision maker had duty to consult and accommodate — If so, whether decision maker discharged this duty — Lands Act, R.S.Y. 2002, c. 132 ; Territorial Lands (Yukon) Act, S.Y. 2003, c. 17 .

Little Salmon/Carmacks entered into a land claims agreement with the governments of Canada and the Yukon Territory in 1997, after 20 years of negotiations. Under the treaty, Little Salmon/Carmacks members have a right of access for hunting and fishing for subsistence in their traditional territory, which includes a parcel of 65 hectares for which P submitted an application for an agricultural land grant in November 2001. The land applied for by P is within the trapline of S, who is a member of Little Salmon/Carmacks.

Little Salmon/Carmacks disclaim any allegation that a grant to P would violate the treaty, which itself contemplates that surrendered land may be taken up from time to time for other purposes, including agriculture. Nevertheless, until such taking up occurs, the members of Little Salmon/Carmacks attach importance to their ongoing treaty interest in surrendered Crown lands (of which the 65 acres forms a small part). Little Salmon/Carmacks contend that in considering the grant to P the territorial government proceeded without proper consultation and without proper regard to relevant First Nation’s concerns.

The Yukon government’s Land Application Review Committee (“LARC”) considered P’s application at a meeting to which it invited Little Salmon/Carmacks. The latter submitted a letter of opposition to P’s application prior to the meeting, but did not attend. At the meeting, LARC recommended approval of the application and, in October 2004, the Director, Agriculture Branch, Yukon Department of Energy, Mines and Resources, approved it. Little Salmon/Carmacks appealed the decision to the Assistant Deputy Minister, who rejected its review request.

On judicial review, however, the Director’s decision was quashed and set aside. The chambers judge held that the Yukon failed to comply with the duty to consult and accommodate. The Court of Appeal allowed the Yukon’s appeal. Held : The appeal and cross-appeal should be dismissed. Per McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ.: When a modern land claim treaty has been concluded, the first step is to look at its provisions and try to determine the parties’ respective obligations, and whether there is some form of consultation provided for in the treaty itself.

While consultation may be shaped by agreement of the parties, the Crown cannot contract out of its duty of honourable dealing with Aboriginal people — it is a doctrine that applies independently of the intention of the parties as expressed or implied in the treaty itself. In this case, a continuing duty to consult existed. Members of Little Salmon/Carmacks possessed an express treaty right to hunt and fish for subsistence on their traditional lands, now surrendered and classified as Crown lands.

While the Treaty did not prevent the government from making land grants out of the Crown’s holdings, and indeed it contemplated such an eventuality, it was obvious that such grants might adversely affect the traditional economic and cultural activities of Little Salmon/Carmacks, and the Yukon was required to consult with Little Salmon/Carmacks to determine the nature and extent of such adverse effects.

The treaty itself set out the elements the parties regarded as an appropriate level of consultation (where the treaty requires consultation) including proper notice of a matter to be decided in sufficient form and detail to allow that party to prepare its view on the matter; a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and full and fair consideration by the party obliged to consult of any views presented.

The actual treaty provisions themselves did not govern the process for agricultural grants at the time. However, given the existence of the treaty surrender and the legislation in place to implement it, and the decision of the parties not to incorporate a more elaborate consultation process in the Treaty itself, the scope of the duty of consultation in this situation was at the lower end of the spectrum.

Accordingly, the Director was required, as a matter of compliance with the legal duty to consult based on the honour of the Crown, to be informed about and consider the nature and severity of any adverse impact of the proposed grant before he made a decision to determine (amongst other things) whether accommodation was necessary or appropriate. The purpose of consultation was not to re-open the Treaty or to re-negotiate the availability of the lands for an agricultural grant. Such availability was already established in the Treaty.

Consultation was required to help manage the important ongoing relationship between the government and the Aboriginal community in a way that upheld the honour of the Crown and promoted the objective of reconciliation. In this case, the duty of consultation was discharged. Little Salmon/Carmacks acknowledges that it received appropriate notice and information. The Little Salmon/Carmacks objections were made in writing and they were dealt with at a meeting at which Little Salmon/Carmacks was entitled to be present (but failed to attend).

Both Little Salmon/Carmacks’ objections and the response of those who attended the meeting were before the Director when, in the exercise of his delegated authority, he approved P’s application. Neither the honour of the Crown nor the duty to consult required more. Nor was there any breach of procedural fairness.

While procedural fairness is a flexible concept, and takes into account the Aboriginal dimensions of the decision facing the Director, it is nevertheless a doctrine that applies as a matter of administrative law to regulate relations between the government decision makers and all residents of the Yukon, Aboriginal as well as non-Aboriginal. While the Yukon had a duty to consult, there was no further duty of accommodation on the facts of this case. Nothing in the treaty itself or in the surrounding circumstances gave rise to such a requirement.

In exercising his discretion in this case, as in all others, the Director was required to respect legal and constitutional limits. The constitutional limits included the honour of the Crown and its supporting doctrine of the duty to consult. The standard of review in that respect, including the adequacy of the consultation, is correctness. Within the limits established by the law and the Constitution, however, the Director’s decision should be reviewed on a standard of reasonableness. In this case, the Director did not err in law in concluding that the level of consultation that had taken place was adequate.

The advice the Director received from his officials after consultation is that the impact of the grant of 65 hectares would not be significant. There is no evidence that he failed to give full and fair consideration to the concerns of Little Salmon/Carmacks. The material filed by the parties on the judicial review application does not demonstrate any palpable error of fact in his conclusion. Whether or not a court would have reached a different conclusion is not relevant.

The decision to approve or not to approve the grant was given by the legislature to the Minister who, in the usual way, delegated the authority to the Director. His disposition was reasonable in the circumstances. Per LeBel and Deschamps JJ.: Whereas past cases have concerned unilateral actions by the Crown that triggered a duty to consult for which the terms had not been negotiated, in the case at bar, the parties have moved on to another stage. Formal consultation processes are now a permanent feature of treaty law, and the Little Salmon/Carmacks Final Agreement affords just one example of this.

To give full effect to the provisions of a treaty such as the Final Agreement is to renounce a paternalistic approach to relations with Aboriginal peoples. It is a way to recognize that Aboriginal peoples have full legal capacity. To disregard the provisions of such a treaty can only encourage litigation, hinder future negotiations and threaten the ultimate objective of reconciliation.

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.

In concluding a treaty, the Crown does not act dishonourably in agreeing with an Aboriginal community on an elaborate framework involving various forms of consultation with respect to the exercise of that community’s rights. Nor does the Crown act dishonourably if it requires the Aboriginal party to agree that no parallel mechanism relating to a matter covered by the treaty will enable that party to renege on its undertakings. Legal certainty is the primary objective of all parties to a comprehensive land claim agreement.

Legal certainty cannot be attained if one of the parties to a treaty can unilaterally renege on its undertakings with respect to a matter provided for in the treaty where there is no provision for its doing so in the treaty. This does not rule out the possibility of there being matters not covered by a treaty with respect to which the Aboriginal party has not surrendered possible Aboriginal rights. Nor does legal certainty imply that an equitable review mechanism cannot be provided for in a treaty.

Thus, it should be obvious that the best way for a court to contribute to ensuring that a treaty fosters a positive long relationship between Aboriginal and non-Aboriginal communities consists in ensuring that the parties cannot unilaterally renege on their undertakings. And once legal certainty has been pursued as a common objective at the negotiation stage, it cannot become a one-way proposition at the stage of implementation of the treaty. On the contrary, certainty with respect to one party’s rights implies that the party in question must discharge its obligations and respect the other party’s rights.

Having laboured so hard, in their common interest, to substitute a well-defined legal system for an uncertain normative system, both the Aboriginal party and the Crown party have an interest in seeing their efforts bear fruit.

It is in fact because the agreement in issue does provide that the Aboriginal party has a right to various forms of consultation with respect to the rights the Crown wishes to exercise in this case that rights and obligations foreign to the mechanism provided for in the treaty must not be superimposed on it, and not simply because this is a “modern” treaty constituting a land claims agreement.

Even when the treaty in issue is a land claims agreement, the Court must first identify the common intention of the parties and then decide whether the common law constitutional duty to consult applies to the Aboriginal party. Therefore, where there is a treaty, the common law duty to consult will apply only if the parties to the treaty have failed to address the issue of consultation.

The consultation that must take place if a right of the Aboriginal party is impaired will consist in either: (1) the measures provided for in the treaty in this regard; or (2) if no such measures are provided for in the treaty, the consultation required under the

common law framework. Where a treaty provides for a mechanism for consultation, what it does is to override the common law duty to consult Aboriginal peoples; it does not affect the general administrative law principle of procedural fairness, which may give rise to a duty to consult rights holders individually. The courts are not blind to omissions, or gaps left in the treaty, by the parties with respect to consultation, and the common law duty to consult could always be applied to fill such a gap. But no such gap can be found in this case.

These general considerations alone would form a sufficient basis for dismissing the appeal. But the provisions of the Final Agreement also confirm this conclusion. The Final Agreement includes general and interpretive provisions that are reproduced from the Umbrella Agreement. More precisely, this framework was first developed by the parties to the Umbrella Agreement, and was then incorporated by the parties into the various final agreements concluded under the Umbrella Agreement. Where there is any inconsistency or conflict, the rules of this framework prevail over the common law principles on the

interpretation of treaties between governments and Aboriginal peoples. These general and interpretive provisions also establish certain rules with respect to the relationships of the Umbrella Agreement and any final agreement concluded under it, not only the relationship between them, but also that with the law in general.

These rules can be summarized in the principle that the Final Agreement prevails over any other non-constitutional legal rule, subject to the requirement that its provisions not be so construed as to affect the rights of “Yukon Indian people” as Canadian citizens and their entitlement to all the rights, benefits and protections of other citizens. In short, therefore, with certain exceptions, the treaty overrides Aboriginal rights related to the matters to which it applies, and in cases of conflict or inconsistency, it prevails over all other non - constitutional law.

Regarding the relationship between the treaty in issue and the rest of our constitutional law other than the case law on Aboriginal rights, such a treaty clearly cannot on its own amend the Constitution of Canada. In other words, the Final Agreement contains no provisions that affect the general principle that the common law duty to consult will apply only where the parties have failed to address the issue of consultation.

This will depend on whether the parties have come to an agreement on this issue, and if they have, the treaty will — unless, of course, the treaty itself provides otherwise — override the application to the parties of any parallel framework, including the common law framework. In this case, the parties included provisions in the treaty that deal with consultation on the very question of the Crown’s right to transfer Crown land upon an application like the one made by P. P’s application constituted a project to which the assessment process provided for in

Chapter 12 of the Final Agreement applied. Although that process had not yet been implemented,

Chapter 12, including the transitional legal rules it contains, had been. Under those rules, any existing development assessment process would remain applicable. The requirements of the processes in question included not only consultation with the First Nation concerned, but also its participation in the assessment of the project. Any such participation would involve a more extensive consultation than would be required by the common law duty in that regard. Therefore, nothing in this case can justify resorting to a duty other than the one provided for in the Final Agreement. Moreover, the provisions of

Chapter 16 on fish and wildlife management establish a framework under which the First Nations are generally invited to participate in the management of those resources at the pre-decision stage. In particular, the invitation they receive to propose fish and wildlife management plans can be regarded as consultation. The territorial government’s conduct raises questions in some respects. In particular, there is the fact that the Director did not notify the First Nation of his decision of October 18, 2004 until July 27, 2005.

Under s. 81(1) of the Yukon Environmental and Socio-economic Assessment Act , S.C. 2003, c. 7 (“ YESAA ”), the “designated office” and, if applicable, the executive committee of the Yukon Development Assessment Board would have been entitled to receive copies of that decision and, one can only assume, to receive them within a reasonable time. Here, the functional equivalent of the designated office is the Land Application Review Committee (“LARC”).

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. The territorial government’s decision to proceed with P’s application at the “prescreening” stage despite the requirement of consultation in the context of the First Nation’s fish and wildlife management plan was not an exemplary practice either.

However, the First Nation did not express concern about this in its letter of July 27, 2004 to Yukon’s Lands Branch. And as can be seen from the minutes of the August 13, 2004 meeting, the concerns of the First Nation with respect to resource conservation were taken into consideration. Also, the required consultation in the context of the fish and wildlife management plan was far more limited than the consultation to which the First Nation was entitled in participating in LARC, which was responsible for assessing the specific project in issue in this appeal.

Finally, the First Nation, the renewable resources council and the Minister had not agreed on a provisional suspension of the processing of applications for land in the area in question. Despite these aspects of the handling of P’s application that are open to criticism, it can be seen from the facts as a whole that the respondents received what they were entitled to receive from the appellants where consultation as a First Nation is concerned. In fact, in some respects they were consulted to an even greater extent than they would have been under the YESAA .

The only right the First Nation would have had under the YESAA was to be heard by the assessment district office as a stakeholder. That consultation would have been minimal, whereas the First Nation was invited to participate directly in the assessment of P’s application as a member of LARC. 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 they had already submitted comments in a letter.

Thus, the process that led to the October 18, 2004 decision on P’s application was consistent with the transitional law provisionsof

Chapter 12 of the Final Agreement. There is no legal basis for finding that the Crown breached its duty to consult. Cases Cited By Binnie J. Considered: R. v. Marshall, (SCC), [1999] 3 S.C.R. 456; R. v. Badger, (SCC), [1996] 1S.C.R. 771; applied: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; HaidaNation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Van der Peet, (SCC), [1996]2 S.C.R. 507; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v.

Khosa, 2009SCC 12, [2009] 1 S.C.R. 339; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; referred to: Taku River TlingitFirst Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v. Kapp, 2008 SCC 41, [2008] 2S.C.R. 483; R. v. Taylor (1981), (ON CA), 62 C.C.C. (2d) 227, leave to appeal refused, [1981] 2 S.C.R. xi; R. v.Sparrow, (SCC), [1990] 1 S.C.R. 1075; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013; Delgamuukw v.British Columbia, (SCC), [1997] 3 S.C.R. 1010; Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council, 2010 SCC 43,[2010] 2 S.C.R. 650; Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; Little Sisters Book and ArtEmporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Suresh v. Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R.256. By Deschamps J. Considered: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388;referred to: Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; R. v.

Sparrow, (SCC), [1990] 1S.C.R. 1075; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit FirstNation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; R. v. Kapp, 2008 SCC 41,[2008] 2 S.C.R. 483; St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, (SCC), [1950] S.C.R. 211; Quebec(Attorney General) v. Canada (National Energy Board), (SCC), [1994] 1 S.C.R. 159; Delgamuukw v.

BritishColumbia, (SCC), [1997] 3 S.C.R. 1010; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. White (1964), (BC CA), 50 D.L.R. (2d) 613, aff’d (1965), (SCC), 52 D.L.R. (2d) 481; R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025; Province of Ontario v. Dominion of Canada (1895), 1895 CanLII 112 (SCC), 25 S.C.R. 434; R. v. Badger, (SCC), [1996] 1 S.C.R. 771; R. v. Sundown, (SCC), [1999] 1 S.C.R. 393; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; Rio Tinto Alcan Inc.v.

Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650; Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, [2001] 3S.C.R. 746. Statutes and Regulations Cited Assessable Activities, Exceptions and Executive Committee Projects Regulations, SOR/2005-379, ss. 2, 5, Sch. 1,

Part 13, item 27. Canadian Charter of Rights and Freedoms. Canadian Environmental Assessment Act, S.C. 1992, c. 37. Constitution Act, 1867,

Part VI. Constitution Act, 1982, ss. 25, 35, 52,

Part V. Environmental Assessment Act, S.Y. 2003, c. 2 [rep. O.I.C. 2005/202, (2006) 25 Y. Gaz. II, 32]. Indian Act, R.S.C. 1985, c. I-5. Lands Act, R.S.Y. 2002, c. 132, s. 7(1)(a). Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1. Territorial Lands (Yukon) Act, S.Y. 2003, c. 17. Wildlife Act, R.S.Y. 2002, c. 229, ss. 13(1), 82, 187. Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7, ss. 2(1) “territory”, 5, 8, 20(1), 23(1), 47(2), 50(1), 55(1)(b),55(4), 60, 63, 81(1), 82(1), 83(1), 84(1), 122(c), 134. Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34, ss. 5, 6(2), 13.

Treaties and Agreements James Bay and Northern Québec Agreement (1975). Little Salmon/Carmacks First Nation Final Agreement, July 1, 1997 (online: http://www.eco.gov.yk.ca/pdf/little_salmon_carmacks_fa.pdf). Treaty No. 8 (1899).

Treaty No. 11 (1921). Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (1993). Authors Cited Canada. Indian and Northern Affairs. Federal Policy for the Settlement of Native Claims . Ottawa: Indian and Northern Affairs Canada, 1993. Grammond, Sébastien. Aménager la coexistence: Les peuples autochtones et le droit canadien . Cowansville, Qué.: Yvon Blais, 2003. Newman, Dwight G. The Duty to Consult: New Relationships with Aboriginal Peoples . Saskatoon: Purich Publishing, 2009.

Saint-Hilaire, Maxime. “La proposition d’entente de principe avec les Innus: vers une nouvelle génération de traités?” (2003), 44 C. de D. 395. Stevenson, Mark L. “Visions of Certainty: Challenging Assumptions”, in Law Commission of Canada, ed., Speaking Truth to Power: A Treaty Forum . Ottawa: Minister of Public Works and Government Services Canada, 2001, 113. Williams, Robert A. Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 . New York: Oxford University Press, 1997. Yukon. Agriculture for the 90s: A Yukon Policy . Whitehorse: Yukon Government, 1991.

APPEAL and CROSS-APPEAL from a judgment of the Yukon Court of Appeal (Newbury, Kirkpatrick and Tysoe JJ.A.), 2008 YKCA 13 , 296 D.L.R. (4th) 99 , 258 B.C.A.C. 160 , 434 W.A.C. 160 , [2008] 4 C.N.L.R. 25 , 71 R.P.R. (4th) 162 , [2008] Y.J. No. 55 (QL) , 2008 CarswellYukon 62 , setting aside the decision of Veale J., 2007 YKSC 28 , [2007] 3 C.N.L.R. 42 , [2007] Y.J. No. 24 (QL) , 2007 CarswellYukon 18 , quashing the approval of application for land grant. Appeal and cross-appeal dismissed. Brad Armstrong , Q.C. , Keith Bergner , Penelope Gawn and Lesley McCullough , for the appellants/respondents on cross-appeal.

Jean Teillet , Arthur Pape and Richard B. Salter , for the respondents/appellants on cross-appeal. Mitchell R. Taylor , Q.C. , for the intervener the Attorney General of Canada. Hugues Melançon and Natacha Lavoie , for the intervener the Attorney General of Quebec. Rolf Pritchard and Justin S. C. Mellor , for the intervener the Attorney General of Newfoundland and Labrador. Brian A. Crane , Q.C. , for the interveners the Gwich’in Tribal Council and Sahtu Secretariat Inc. Jean-Sébastien Clément and François Dandonneau , for the intervener the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority.

James M. Coady , Dave Joe and Daryn R. Leas , for the intervener the Council of Yukon First Nations. Joseph J. Arvay , Q.C. , and Bruce Elwood , for the intervener the Kwanlin Dün First Nation. James R. Aldridge , Q.C. , and Dominique Nouvet , for the intervener Nunavut Tunngavik Inc. John Donihee , for the intervener the Tlicho Government. Robert J. M. Janes and Karey M. Brooks , for the intervener the Te’Mexw Nations. Peter W. Hutchins and Julie Corry , for the intervener the Assembly of First Nations.

The judgment of McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ. was delivered by [ 1 ] Binnie J. — This appeal raises important questions about the

interpretation and implementation of modern comprehensive land claims treaties between the Crown and First Nations and other levels of government. [ 2 ] The treaty at issue here is the Little Salmon/Carmacks First Nation Final Agreement (the “LSCFN Treaty”), which was finalized in 1996 and ratified by members of the First Nation in 1997. The LSCFN Treaty is one of 11 that arose out of and implement an umbrella agreement signed in 1993 after 20 years of negotiations between representatives of all of the Yukon First Nations and the federal and territorial governments. It was a monumental achievement.

These treaties fall within the protection of s. 35 of the Constitution Act, 1982 , which gives constitutional protection to existing Aboriginal and treaty rights. [ 3 ] The present dispute relates to an application for judicial review of a decision by the Yukon territorial government dated October 18, 2004, to approve the grant of 65 hectares of surrendered land to a Yukon resident named Larry Paulsen.

The plot borders on the settlement lands of the Little Salmon/Carmacks First Nation, and forms part of its traditional territory, to which its members have a treaty right of access for hunting and fishing for subsistence. In the result, Mr. Paulsen still awaits the outcome of the grant application he submitted on November 5, 2001. [ 4 ] The First Nation disclaims any allegation that the Paulsen grant would violate the LSCFN Treaty, which itself

contemplates that surrendered land may be taken up from time to time for other purposes, including agriculture. Nevertheless, until suchtaking up occurs, the members of the LSCFN have an ongoing treaty interest in surrendered Crown lands (of which the 65 hectares forma small part), to which they have a treaty right of access for hunting and fishing for subsistence. The LSCFN contends that the territorialgovernment proceeded without proper consultation and without proper regard to relevant First Nation’s concerns.

They say the decisionof October 18, 2004, to approve the Paulsen grant should be quashed. [5] The territorial government responds that no consultation was required. The LSCFN Treaty, it says, is a completecode. The treaty refers to consultation in over 60 different places but a land grant application is not one of them.

Where not specificallyincluded, the duty to consult, the government says, is excluded. [6] The important context of this appeal, therefore, is an application for judicial review of a decision that was requiredto be made by the territorial government having regard to relevant constitutional as well as administrative law constraints. The YukonCourt of Appeal held, as had the trial judge, that the LSCFN Treaty did not exclude the duty of consultation, although in this case thecontent of that duty was at the lower end of the spectrum (2007 YKSC 28; 2008 YKCA 13).

The Court of Appeal went on to hold,disagreeing in this respect with the trial judge, that on the facts the government’s duty of consultation had been fulfilled. [7] I agree that the duty of consultation was not excluded by the LSCFN Treaty, although its terms were relevant to theexercise of the territorial government discretion, as were other principles of administrative and Aboriginal law, as will be discussed. Onthe facts of the Paulsen application, however, I agree with the conclusion of the Court of Appeal that the First Nation did not make out itscase.

The First Nation received ample notice of the Paulsen application, an adequate information package, and the means to makeknown its concerns to the decision maker. The LSCFN’s objections were made in writing and they were dealt with at a meeting at whichthe First Nation was entitled to be present (but failed to show up). Both the First Nation’s objections and the response of those whoattended the meeting were before the appellant when, in the exercise of his delegated authority, he approved the Paulsen application.

Inlight of the consultation provisions contained in the treaty, neither the honour of the Crown nor the duty to consult were breached. Norwas there any breach of procedural fairness. Nor can it be said that the appellant acted unreasonably in making the decision that he did. I would dismiss the appeal and cross-appeal. I. Overview [8] Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what isnow Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations.

The objective was notonly to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization andsettlement. No treaties were signed with the Yukon First Nations until modern times. [9] Unlike their historical counterparts, the modern comprehensive treaty is the product of lengthy negotiationsbetween well-resourced and sophisticated parties. The negotiation costs to Yukon First Nations of their various treaties, financed by thefederal government through reimbursable loans, were enormous. The LSCFN share alone exceeded seven million dollars.

Under theYukon treaties, the Yukon First Nations surrendered their Aboriginal rights in almost 484,000 square kilometres, roughly the size ofSpain, in exchange for defined treaty rights in respect of land tenure and a quantum of settlement land (41,595 square kilometres), accessto Crown lands, fish and wildlife harvesting, heritage resources, financial compensation, and participation in the management of publicresources.

To this end, the LSCFN Treaty creates important institutions of self-government and authorities such as the YukonEnvironmental and Socio-economic Assessment Board and the Carmacks Renewable Resources Council, whose members are jointlynominated by the First Nation and the territorial government. [10] The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is thegrand purpose of s. 35 of the Constitution Act, 1982.

The modern treaties, including those at issue here, attempt to further the objectiveof reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-termrelationship between Aboriginal and non-Aboriginal communities. Thoughtful administration of the treaty will help manage, even if itfails to eliminate, some of the misunderstandings and grievances that have characterized the past.

Still, as the facts of this case show, thetreaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everydaycommercial contract. The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future ismore important than the past.

A canoeist who hopes to make progress faces forwards, not backwards. [11] Equally, however, the LSCFN is bound to recognize that the $34 million and other treaty benefits it received inexchange for the surrender has earned the territorial government a measure of flexibility in taking up surrendered lands for otherpurposes. [12] The increased detail and sophistication of modern treaties represents a quantum leap beyond the pre-Confederationhistorical treaties such as the 1760-61 Treaty at issue in R. v.

Marshall, (SCC), [1999] 3 S.C.R. 456, and post-Confederation treaties such as Treaty No. 8 (1899) at issue in R. v. Badger, (SCC), [1996] 1 S.C.R. 771, and MikisewCree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388. The historical treaties were typicallyexpressed in lofty terms of high generality and were often ambiguous. The courts were obliged to resort to general principles (such as thehonour of the Crown) to fill the gaps and achieve a fair outcome.

Modern comprehensive land claim agreements, on the other hand,starting perhaps with the James Bay and Northern Québec Agreement (1975), while still to be interpreted and applied in a manner thatupholds the honour of the Crown, were nevertheless intended to create some precision around property and governance rights andobligations. Instead of ad hoc remedies to smooth the way to reconciliation, the modern treaties are designed to place Aboriginal andnon-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability.

It is up to theparties, when treaty issues arise, to act diligently to advance their respective interests. Good government requires that decisions be takenin a timely way. To the extent the Yukon territorial government argues that the Yukon treaties represent a new departure and not just anelaboration of the status quo, I think it is correct.

However, as the trial judge Veale J. aptly remarked, the new departure represents but astep — albeit a very important step — in the long journey of reconciliation (para. 69). [13] There was in this case, as mentioned, an express treaty right of members of the First Nation to hunt and fish for

subsistence on their traditional lands, now surrendered and classified as Crown lands.

While the LSCFN Treaty did not prevent the government from making land grants out of the Crown’s land holdings, and indeed it contemplated such an eventuality, it was obvious that such grants might adversely affect the traditional economic activities of the LSCFN, and the territorial government was required to consult with the LSCFN to determine the nature and extent of such adverse effects. [ 14 ] The delegated statutory decision maker was the appellant David Beckman, the Director of the Agriculture Branch of the territorial Department of Energy, Mines and Resources.

He was authorized, subject to the treaty provisions, to issue land grants to non-settlement lands under the Lands Act , R.S.Y. 2002, c. 132, and the Territorial Lands (Yukon) Act , S.Y. 2003, c. 17. The First Nation argues that in exercising his discretion to approve the grant the Director was required to have regard to First Nation’s concerns and to engage in consultation. This is true. The First Nation goes too far, however, in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive right of accommodation.

The First Nation protests that its concerns were not taken seriously — if they had been, it contends, the Paulsen application would have been denied. This overstates the scope of the duty to consult in this case. The First Nation does not have a veto over the approval process. No such substantive right is found in the treaty or in the general law, constitutional or otherwise. The Paulsen application had been pending almost three years before it was eventually approved.

It was a relatively minor parcel of 65 hectares whose agricultural use, according to the advice received by the Director (and which he was entitled to accept), would not have any significant adverse effect on First Nation’s interests. [ 15 ] Unlike Mikisew Cree where some accommodation was possible through a rerouting of the proposed winter road, in this case, the stark decision before the appellant Director was to grant or refuse the modified Paulsen application. He had before him the relevant information. Face-to-face consultation between the First Nation and the Director (as decision maker) was not required.

In my view, the decision was reasonable having regard to the terms of the treaty, and in reaching it the Director did not breach the requirements of the duty to consult, natural justice, or procedural fairness. There was no constitutional impediment to approval of the Paulsen application and from an administrative law perspective the outcome fell within a range of reasonable outcomes. II. Facts [ 16 ] On November 5, 2001, Larry Paulsen submitted his application for an agricultural land grant of 65 hectares. He planned to grow hay, put up some buildings and raise livestock.

The procedure governing such grant applications was set out in a pre- treaty territorial government policy, Agriculture for the 90s: A Yukon Policy (1991) (the “1991 Agriculture Policy”). [ 17 ] The Paulsen application (eventually in the form of a “Farm Development Plan”) was pre-screened by the Agriculture Branch and the Lands Branch as well as the Land Claims and Implementation Secretariat (all staffed by territorial civil servants) for completeness and compliance with current government policies. [ 18 ] The Paulsen application was then sent to the Agriculture Land Application Review Committee (“ALARC”) for a more in-depth technical review by various Yukon government officials.

ALARC was established under the 1991 Agriculture Policy. It predates and is completely independent from the treaty. The civil servants on ALARC recommended that Mr. Paulsen reconfigure his parcel to include only the “bench” of land set back from the Yukon River for reasons related to the suitability of the soil and unspecified environmental, wildlife, and trapping concerns. Mr.

Paulsen complied. [ 19 ] On February 24, 2004, ALARC recommended that the Paulsen application for the parcel, as reconfigured, proceed to the next level of review, namely, the Land Application Review Committee (“LARC”), which includes First Nation’s representatives.

LARC also functioned under the 1991 Agriculture Policy and, as well, existed entirely independently of the treaties. [ 20 ] Reference should also be made at this point to the Fish and Wildlife Management Board — a treaty body composed of persons nominated by the First Nation and Yukon government — which in August 2004 (i.e. while the Paulsen application was pending) adopted a Fish and Wildlife Management Plan (“FWMP”) that identified a need to protect wildlife and habitat in the area of the Yukon River, which includes the Paulsen lands.

It proposed that an area in the order of some 10,000 hectares be designated as a Habitat Protection Area under the Wildlife Act , R.S.Y. 2002, c. 229. The FWMP also recognized the need to preserve the First Nation’s ability to transfer its culture and traditions to its youth through opportunities to participate in traditional activities. The FWMP did not, however, call for a freeze on approval of agricultural land grants in the area pending action on the FWMP proposals. [ 21 ] Trapline #143 was registered to Johnny Sam, a member of the LSCFN.

His trapline is in a category administered by the Yukon government, not the First Nation. It helps him to earn a livelihood as well as to provide a training ground for his grandchildren and other First Nation youth in the ways of trapping and living off the land. The trapline covers an area of approximately 21,435 hectares. As noted by the Court of Appeal, the 65 hectares applied for by Mr. Paulsen is approximately one-third of one percent of the trapline. A portion of the trapline had already been damaged by forest fire, which, in the LSCFN view, added to the significance of the loss of a further 65 hectares.

The severity of the impact of land grants, whether taken individually or cumulatively, properly constituted an important element of the consultation with LARC and, ultimately, a relevant consideration to be taken into account by the Director in reaching his decision. [ 22 ] The LARC meeting to discuss the Paulsen application was scheduled for August 13, 2004. The First Nation received notice and was invited to provide comments prior to the meeting and to participate in the discussion as a member of LARC. [ 23 ] On July 27, 2004, the First Nation submitted a letter of opposition to the Paulsen application.

The letter identified concerns about impacts on Trapline #143, nearby timber harvesting, the loss of animals to hunt in the area, and adjacent cultural and heritage sites. No reference was made in the First Nation’s letter to Johnny Sam’s concerns about cultural transfer or to the FWMP. The letter simply states that “[t]he combination of agricultural and timber harvesting impacts on this already-damaged trapline would certainly be a significant deterrent to the ability of the trapper to continue his traditional pursuits” (A.R., vol. II, at p. 22). [ 24 ] Nobody from the LSCFN attended the August 13, 2004 meeting.

Susan Davis, its usual representative, was unable to attend for undisclosed reasons. The meeting went on as planned. [ 25 ] The members of LARC who were present (mainly territorial government officials) considered the Paulsen

application and recommended approval in principle. The minutes of the August 13 meeting show that LARC did consider the concerns voiced by the LSCFN in its July 27, 2004 letter. Those present at the meeting concluded that the impact of the loss of 65 hectares on Trapline #143 would be minimal as the Paulsen application covered a very small portion of the trapline’s overall area and noted that Johnny Sam could apply under

Chapter 16 of the LSCFN Treaty for compensation for any diminution in its value. LARC recommended an archaeological survey to address potential heritage and cultural sites. (An archaeological assessment was later conducted and reported on September 2, 2004, that it was unable to identify any sites that would be impacted adversely by the grant.) [ 26 ] On September 8, 2004, the First Nation representatives met with Agriculture Branch staff who were conducting an agricultural policy review. The meeting did not focus specifically on the Paulsen application.

Nevertheless, the First Nation made the general point that its concerns were not being taken seriously. Agriculture Branch officials replied that they consult on such matters through LARC but they were not required by the Final Agreement to consult on such issues. Meetings and discussions with the First Nation had been conducted, they said, only as a courtesy. [ 27 ] On October 18, 2004, the Director approved the Paulsen application and sent a letter to Larry Paulsen, informing him of that fact.

He did not notify the LSCFN of his decision, as he ought to have done. [ 28 ] Apparently unaware that the Paulsen application had been approved, the First Nation continued to express its opposition by way of a series of letters from Chief Eddie Skookum to the Yukon government. Johnny Sam also wrote letters expressing his opposition. It seems the government officials failed to disclose that the Director’s decision to approve the grant had already been made.

This had the unfortunate effect of undermining appropriate communication between the parties. [ 29 ] In the summer of 2005, Susan Davis, representing the First Nation, made enquiries of the Agriculture Branch and obtained confirmation that the Paulsen application had already been approved.

She was sent a copy of the October 18, 2004 approval letter. [ 30 ] In response, by letter dated August 24, 2005, the First Nation launched an administrative appeal of the Paulsen grant to the Assistant Deputy Minister. [ 31 ] On December 12, 2005, the request to review the decision was rejected on the basis that the First Nation had no right of appeal because it was a member of LARC, and not just an intervener under the LARC Terms of Reference. The Terms of Reference specify that only applicants or interveners may initiate an appeal.

The Terms of Reference had no legislative or treaty basis whatsoever, but the Yukon government nevertheless treated them as binding both on the government and on the First Nation. [ 32 ] Frustrated by the territorial government’s approach, which it believed broadly misconceived and undermined relations between the territorial government and the LSCFN, the First Nation initiated the present application for judicial review. III.

Analysis [ 33 ] The decision to entrench in s. 35 of the Constitution Act, 1982 the recognition and affirmation of existing Aboriginal and treaty rights, signalled a commitment by Canada’s political leaders to protect and preserve constitutional space for Aboriginal peoples to be Aboriginal. At the same time, Aboriginal people do not, by reason of their Aboriginal heritage, cease to be citizens who fully participate with other Canadians in their collective governance. This duality is particularly striking in the Yukon, where about 25 percent of the population identify themselves as Aboriginal.

The territorial government, elected in part by Aboriginal people, represents Aboriginal people as much as it does non-Aboriginal people, even though Aboriginal culture and tradition are and will remain distinctive. [ 34 ] Underlying the present appeal is not only the need to respect the rights and reasonable expectations of Johnny Sam and other members of his community, but the rights and expectations of other Yukon residents, including both Aboriginal people and Larry Paulsen, to good government.

The Yukon treaties are intended, in part, to replace expensive and time-consuming ad hoc procedures with mutually agreed upon legal mechanisms that are efficient but fair. [ 35 ] I believe the existence of Larry Paulsen’s stake in this situation is of considerable importance. Unlike Mikisew Cree , which involved a dispute between the Federal government and the Mikisew Cree First Nation over the route of a winter road, Mr. Paulsen made his application as an ordinary citizen who was entitled to a government decision reached with procedural fairness within a reasonable time.

On the other hand, the entitlement of the trapper Johnny Sam was a derivative benefit based on the collective interest of the First Nation of which he was a member. I agree with the Court of Appeal that he was not, as an individual, a necessary party to the consultation. A.

The LSCFN Treaty Reflects a Balance of Interests [ 36 ] Under the treaty, the LSCFN surrendered all undefined Aboriginal rights, title, and interests in its traditional territory in return for which it received: • title to 2,589 square kilometres of “settlement land” [Chapters 9 and 15]; • financial compensation of $34,179,210 [Chapter 19]; • potential for royalty sharing [Chapter 23]; • economic development measures [Chapter 22]; • rights of access to Crown land (except that disposed of by agreement for sale, surface licence, or lease) [Chapter 6]; • special management areas [Chapter 10];

• protection of access to settlement land [s. 6.2.7]; • rights to harvest fish and wildlife [Chapter 16]; • rights to harvest forest resources [Chapter 17]; • rights to representation and involvement in land use planning [Chapter 11] and resource management [Chapters 14, 16-18]. (C.A. reasons, para. 41) These are substantial benefits, especially when compared to the sparse offerings of earlier treaties such as those provided to the MikisewCree in Treaty No. 8. With the substantive benefits, however, came not only rights but duties and obligations.

It is obvious that thelong-term interdependent relationship thus created will require work and good will on both sides for its success. [37] The reason for the government’s tight-lipped reaction to the unfolding Paulsen situation, as explained to us at thehearing by its counsel, was the fear that if the duty of consultation applies, “these parties will be in court like parties are in areas wherethere are no treaties, and there will be litigation over whether the consultation applies; what is the appropriate level of the consultation? Is accommodation required?

It is all under court supervision” (transcript, at p. 18). The history of this appeal shows, however, thattaking a hard line does not necessarily speed matters up or make litigation go away. [38] The denial by the Yukon territorial government of any duty to consult except as specifically listed in the LSCFNTreaty complicated the Paulsen situation because at the time the Director dealt with the application the treaty implementation provisioncontemplated in

Chapter 12 had itself not yet been implemented. I do not believe the Yukon Treaty was intended to be a “completecode”. Be that as it may, the duty to consult is derived from the honour of the Crown which applies independently of the expressed orimplied intention of the parties (see below, at para. 61). In any event, the procedural gap created by the failure to implement

Chapter 12had to be addressed, and the First Nation, in my view, was quite correct in calling in aid the duty of consultation in putting together anappropriate procedural framework. [39] Nevertheless, consultation was made available and did take place through the LARC process under the 1991Agriculture Policy, and the ultimate question is whether what happened in this case (even though it was mischaracterized by theterritorial government as a courtesy rather than as the fulfilment of a legal obligation) was sufficient. In Taku River Tlingit First Nationv.

British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, the Court held that participation in a forumcreated for other purposes may nevertheless satisfy the duty to consult if in substance an appropriate level of consultation is provided. B. The Relationship Between

Section 35 and the Duty to Consult [40] The First Nation relies in particular on the following statements in Haida Nation v. British Columbia (Minister ofForests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 20: It is a corollary of s. 35 that the Crown act honourably in defining the rights it guarantees and in reconciling them with other rights andinterests. This, in turn, implies a duty to consult and, if appropriate, accommodate.

Further, at para. 32: The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing andreconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a finallegal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982.[Emphasis added.] [41] Reference should also be made to R. v.

Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 6, where the Court said: The decision to enhance aboriginal participation in the commercial fishery may also be seen as a response to the directive of this Court inSparrow, at p. 1119, that the government consult with aboriginal groups in the implementation of fishery regulation in order to honour itsfiduciary duty to aboriginal communities.

Subsequent decisions have affirmed the duty to consult and accommodate aboriginalcommunities with respect to resource development and conservation; it is a constitutional duty, the fulfilment of which is consistent withthe honour of the Crown: see e.g. Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010. [Emphasis added.] [42] The obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamationof 1763 (reproduced in R.S.C. 1985, App.

II, No. 1), in which the British Crown pledged its honour to the protection of Aboriginalpeoples from exploitation by non-Aboriginal peoples. The honour of the Crown has since become an important anchor in this area of thelaw: see R. v. Taylor (1981), (ON CA), 62 C.C.C. (2d) 227 (Ont. C.A.), leave to appeal refused, [1981] 2 S.C.R. xi;R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013; Delgamuukwv. British Columbia, (SCC), [1997] 3 S.C.R. 1010; as well as Badger, Marshall and Mikisew Cree, previously referredto.

The honour of the Crown has thus been confirmed in its status as a constitutional principle. [43] However, this is not to say that every policy and procedure of the law adopted to uphold the honour of the Crown isitself to be treated as if inscribed in s. 35. As the Chief Justice noted in Haida Nation, “[t]he honour of the Crown gives rise to differentduties in different circumstances” (para. 18). This appeal considers its application in the modern treaty context; its application where notreaty has yet been signed was recently the subject of this Court’s decision in Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council, 2010SCC 43, [2010] 2 S.C.R. 650. [44] The respondents’ submission, if I may put it broadly, is that because the duty to consult is “constitutional”, thereforethere must be a reciprocal constitutional right of the First Nation to be consulted, and constitutional rights of Aboriginal peoples are notsubject to abrogation or derogation except as can be justified under the high test set out in Sparrow. On this view, more or less every

case dealing with consultation in the

interpretation and implementation of treaties becomes a constitutional case. The trouble with thisargument is that the content of the duty to consult varies with the circumstances. In relation to what Haida Nation called a “spectrum” ofconsultation (para. 43), it cannot be said that consultation at the lower end of the spectrum instead of at the higher end must be justifiedunder the Sparrow doctrine. The minimal content of the consultation imposed in Mikisew Cree (para. 64), for example, did not have tobe “justified” as a limitation on what would otherwise be a right to “deep” consultation.

The circumstances in Mikisew Cree never gaverise to anything more than minimal consultation. The concept of the duty to consult is a valuable adjunct to the honour of the Crown, butit plays a supporting role, and should not be viewed independently from its purpose. [45] The LSCFN invited us to draw a bright line between the duty to consult (which it labelled constitutional) andadministrative law principles such as procedural fairness (which it labelled unsuitable).

At the hearing, counsel for the LSCFN wasdismissive of resort in this context to administrative law principles: [A]dministrative law principles are not designed to address the very unique circumstance of the Crown-Aboriginal history, the Crown-Aboriginal relationship. Administrative law principles, for all their tremendous value, are not tools toward reconciliation of Aboriginalpeople and other Canadians. They are not instruments to reflect the honour of the Crown principles. [transcript, at p. 62] However, as Lamer C.J. observed in R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507, “aboriginal rights exist within thegeneral legal system of Canada” (para. 49). Administrative decision makers regularly have to confine their decisions withinconstitutional limits: Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; Little Sisters Book andArt Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; Suresh v. Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 S.C.R. 3; and Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R.256.

In this case, the constitutional limits include the honour of the Crown and its supporting doctrine of the duty to consult. [46] The link between constitutional doctrine and administrative law remedies was already noted in Haida Nation, at theoutset of our Court’s duty to consult jurisprudence: In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to thecircumstances.

In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrativelaw. [Emphasis added; para. 41.] The relevant “procedural safeguards” mandated by administrative law include not only natural justice but the broader notion ofprocedural fairness. And the content of meaningful consultation “appropriate to the circumstances” will be shaped, and in some casesdetermined, by the terms of the modern land claims agreement.

Indeed, the parties themselves may decide therein to excludeconsultation altogether in defined situations and the decision to do so would be upheld by the courts where this outcome would beconsistent with the maintenance of the honour of the Crown. [47] The parties in this case proceeded by way of an ordinary application for judicial review. Such a procedure wasperfectly capable of taking into account the constitutional dimension of the rights asserted by the First Nation. There is no need to inventa new “constitutional remedy”.

Administrative law is flexible enough to give full weight to the constitutional interests of the FirstNation. Moreover, the impact of an administrative decision on the interest of an Aboriginal community, whether or not that interest isentrenched in a s. 35 right, would be relevant as a matter of procedural fairness, just as the impact of a decision on any other communityor individual (including Larry Paulsen) may be relevant. C. Standard of Review [48] In exercising his discretion under the Yukon Lands Act and the Territorial Lands (Yukon) Act, the Director wasrequired to respect legal and constitutional limits.

In establishing those limits no deference is owed to the Director. The standard ofreview in that respect, including the adequacy of the consultation, is correctness. A decision maker who proceeds on the basis ofinadequate consultation errs in law. Within the limits established by the law and the Constitution, however, the Director’s decisionshould be reviewed on a standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.

In other words, if there was adequate consultation, did theDirector’s decision to approve the Paulsen grant, having regard to all the relevant considerations, fall within the range of reasonableoutcomes? D. The Role and Function of the LSCFN Treaty [49] The territorial government and the LSCFN have very different views on this point. This difference lies at the heartof their opposing arguments on the appeal. [50] The territorial government regards the role of the LSCFN Treaty as having nailed down and forever settled the rightsand obligations of the First Nation community as Aboriginal people.

The treaty recognized and affirmed the Aboriginal rightssurrendered in the land claim. From 1997 onwards, the rights of the Aboriginal communities of the LSCFN, in the government’s view,were limited to the treaty. To put the government’s position simplistically, what the First Nations negotiated as terms of the treaty iswhat they get. Period. [51] The LSCFN, on the other hand, considers as applicable to the Yukon what was said by the Court in Mikisew Cree, atpara. 54: Treaty making is an important stage in the long process of reconciliation, but it is only a stage.

What occurred at Fort Chipewyan in1899 was not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it. And so it is, according to the First Nation, with the treaty-making process in the Yukon that led in 1997 to the ratification of the LSCFNTreaty.

[ 52 ] I agree with the territorial government that the LSCFN Treaty is a major advance over what happened in Fort Chipewyan in 1899, both in the modern treaty’s scope and comprehensiveness, and in the fairness of the procedure that led up to it. The eight pages of generalities in Treaty No. 8 in 1899 is not the equivalent of the 435 pages of the LSCFN Treaty almost a century later. The LSCFN Treaty provides a solid foundation for reconciliation, and the territorial government is quite correct that the LSCFN Treaty should not simply set the stage for further negotiations from ground zero.

Nor is that the First Nation’s position. It simply relies on the principle noted in Haida Nation that “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples” (para. 16 (emphasis added)). Reconciliation in the Yukon, as elsewhere, is not an accomplished fact. It is a work in progress. The “complete code” position advocated by the territorial government is, with respect, misconceived. As the Court noted in Mikisew Cree : “The duty to consult is grounded in the honour of the Crown . . . .

The honour of the Crown exists as a source of obligation independently of treaties as well, of course” (para. 51). [ 53 ] On this point, Haida Nation represented a shift in focus from Sparrow . Whereas the Court in Sparrow had been concerned about sorting out the consequences of infringement, Haida Nation attempted to head off such confrontations by imposing on the parties a duty to consult and (if appropriate) accommodate in circumstances where development might have a significant impact on Aboriginal rights when and if established.

In Mikisew Cree , the duty to consult was applied to the management of an 1899 treaty process to “take up” (as in the present case) ceded Crown lands for “other purposes”. The treaty itself was silent on the process. The Court held that on the facts of that case the content of the duty to consult was at “the lower end of the spectrum” (para. 64), but that nevertheless the Crown was wrong to act unilaterally. [ 54 ] The difference between the LSCFN Treaty and Treaty No. 8 is not simply that the former is a “modern comprehensive treaty” and the latter is more than a century old.

Today’s modern treaty will become tomorrow’s historic treaty. The distinction lies in the relative precision and sophistication of the modern document. Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shape to the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to such constitutional limitations as the honour of the Crown, the Court should strive to respect their handiwork: Qu ebec (Attorney General) v.

Moses , 2010 SCC 17 , [2010] 1 S.C.R. 557. [ 55 ] However, the territorial government presses this position too far when it asserts that unless consultation is specifically required by the Treaty it is excluded by negative inference. Consultation in some meaningful form is the necessary foundation of a successful relationship with Aboriginal people.

As the trial judge observed, consultation works “to avoid the indifference and lack of respect that can be destructive of the process of reconciliation that the Final Agreement is meant to address” (para. 82). [ 56 ] The territorial government would have been wrong to act unilaterally.

The LSCFN had existing treaty rights in relation to the land Paulsen applied for, as set out in s. 16.4.2 of the LSCFN Treaty: Yukon Indian People shall have the right to harvest for Subsistence within their Traditional Territory . . . all species of Fish and Wildlife for themselves and their families at all seasons of the year and in any numbers on Settlement Land and on Crown Land to which they have a right of access pursuant to 6.2.0, subject only to limitations prescribed pursuant to Settlement Agreements.

The Crown land was subject to being taken up for other purposes (as in Mikisew Cree ), including agriculture, but in the meantime the First Nation had a continuing treaty interest in Crown lands to which their members continued to have a treaty right of access (including but not limited to the Paulsen plot). It was no less a treaty interest because it was defeasible. [ 57 ] The decision maker was required to take into account the impact of allowing the Paulsen application on the concerns and interests of members of the First Nation.

He could not take these into account unless the First Nation was consulted as to the nature and extent of its concerns. Added to the ordinary administrative law duties, of course, was the added legal burden on the territorial government to uphold the honour of the Crown in its dealings with the First Nation.

Nevertheless, given the existence of the treaty surrender and the legislation in place to implement it, and the decision of the parties not to incorporate a more general consultation process in the LSCFN Treaty itself, the content of the duty of consultation (as found by the Court of Appeal) was at the lower end of the spectrum. It was not burdensome. But nor was it a mere courtesy. E. The Source of the Duty to Consult Is External to the LSCFN Treaty [ 58 ] The LSCFN Treaty dated July 21, 1997, is a comprehensive lawyerly document.

The territorial government argues that the document refers to the duty to consult in over 60 different places but points out that none of them is applicable here (although the implementation of

Chapter 12, which was left to subsequent legislative action, did not foreclose the possibility of such a requirement). [ 59 ] There was considerable discussion at the bar about whether the duty to consult, if it applies at all, should be considered an implied term of the LSCFN Treaty or a duty externally imposed as a matter of law. [ 60 ] The territorial government takes the view that terms cannot be implied where the intention of the parties is plainly inconsistent with such an outcome.

In this case, it says, the implied term is negated by the parties’ treatment of consultation throughout the treaty and its significant absence in the case of land grants. The necessary “negative inference”, argues the territorial government, is that failure to include it was intentional. [ 61 ] I think this argument is unpersuasive. The duty to consult is treated in the jurisprudence as a means (in appropriate circumstances) of upholding the honour of the Crown. Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.

As held in Haida Nation and affirmed in Mikisew Cree , it is a doctrine that applies independently of the expressed or implied intention of the parties. [ 62 ] The argument that the LSCFN Treaty is a “complete code” is untenable. For one thing, as the territorial government acknowledges, nothing in the text of the LSCFN Treaty authorizes the making of land grants on Crown lands to which the First Nation continues to have treaty access for subsistence hunting and fishing. The territorial government points out that authority to alienate Crown land exists in the general law.

This is true, but the general law exists outside the treaty. The territorial government cannot select from

the general law only those elements that suit its purpose. The treaty sets out rights and obligations of the parties, but the treaty is part of a special relationship: “In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties , the Crown must act honourably” ( Haida Nation , at para. 17 (emphasis added)).

As the text of s. 35(3) makes clear, a modern comprehensive land claims agreement is as much a treaty in the eyes of the Constitution as are the earlier pre- and post- Confederation treaties. [ 63 ] At the time the Paulsen application was pending, the implementation of the LSCFN Treaty was in transition. It contemplates in

Chapter 12 the enactment of a “development assessment process” to implement the treaty provisions. This was ultimately carried into effect in the Yukon Environmental and Socio-economic Assessment Act , S.C. 2003, c. 7 (“ YESAA ”). The territorial government acknowledges that the YESAA would have applied to the Paulsen application.

Part 2 of the Act (regarding the assessment process) did not come into force until after the Paulsen application was approved (s. 134). The treaty required the government to introduce the law within two years of the date of the settlement legislation (s. 12.3.4). This was not done.

The subsequent legislative delay did not empower the territorial government to proceed without consultation. [ 64 ] The purpose of the YESAA is broadly stated to “[give] effect to the provisions of Umbrella Final Agreement respecting assessment of environmental and socio-economic effects” by way of a “comprehensive, neutrally conducted assessment process” (s. 5) where “an authorization or the grant of an interest in land” would be required (s. 47(2)( c )).

The neutral assessor is the Yukon Environmental and Socio-economic Assessment Board, to which (excluding the chair) the Council for Yukon Indians would nominate half the members and the territorial government the other half. The Minister, after consultation, would appoint the chair. [ 65 ] The territorial government contends that this new arrangement is intended to satisfy the requirement of consultation on land grants in a way that is fair both to First Nations and to the other people of the Yukon.

Assuming (without deciding) this to be so, the fact remains that no such arrangement was in place at the relevant time. [ 66 ] In the absence of the agreed arrangement, consultation was necessary in this case to uphold the honour of the Crown. It was therefore imposed as a matter of law. F. The LSCFN Treaty Does Not Exclude the Duty to Consult and, if Appropriate, Accommodate [ 67 ] When a modern treaty has been concluded, the first step is to look at its provisions and try to determine the parties’ respective obligations, and whether there is some form of consultation provided for in the treaty itself.

If a process of consultation has been established in the treaty, the scope of the duty to consult will be shaped by its provisions. [ 68 ] The territorial government argues that a mutual objective of the parties to the LSCFN Treaty was to achieve certainty, as is set out in the

preamble: . . . the parties to this Agreement wish to achieve certainty with respect to the ownership and use of lands and other resources of the Little Salmon/Carmacks First Nation Traditional Territory; the parties wish to achieve certainty with respect to their relationships to each other . . . . Moreover the treaty contains an “entire agreement” clause.

Section 2.2.15 provides that Settlement Agreements shall be the entire agreement between the parties thereto and there shall be no representation, warranty, collateral agreement or condition affecting those Agreements except as expressed in them. [ 69 ] However, as stated, the duty to consult is not a “collateral agreement or condition”. The LSCFN Treaty is the “entire agreement”, but it does not exist in isolation. The duty to consult is imposed as a matter of law, irrespective of the parties’ “agreement”. It does not “affect” the agreement itself.

It is simply part of the essential legal framework within which the treaty is to be interpreted and performed. [ 70 ] The First Nation points out that there is an express exception to the “entire agreement” clause in the case of “existing or future constitutional rights”, at s. 2.2.4: Subject to 2.5.0, 5.9.0, 5.10.1 and 25.2.0, Settlement Agreements shall not affect the ability of aboriginal people of the Yukon to exercise, or benefit from, any existing or future constitutional rights for aboriginal people that may be applicable to them.

Section 2.2.4 applies, the LSCFN argues, because the duty of consultation is a new constitutional duty and should therefore be considered a “future” constitutional right within the scope of the section. [ 71 ] As discussed, the applicable “existing or future constitutional right” is the right of the Aboriginal parties to have the treaty performed in a way that upholds the honour of the Crown. That principle is readily conceded by the territorial government. However, the honour of the Crown may not always require consultation .

The parties may, in their treaty, negotiate a different mechanism which, nevertheless, in the result, upholds the honour of the Crown. In this case, the duty applies, the content of which will now be discussed. G. The Content of the Duty to Consult [ 72 ] The adequacy of the consultation was the subject of the First Nation’s cross-appeal. The adequacy of what passed (or failed to pass) between the parties must be assessed in light of the role and function to be served by consultation on the facts of the case and whether that purpose was, on the facts, satisfied.

[ 73 ] The Yukon Lands Act and the Territorial Lands (Yukon) Act created a discretionary authority to make grants but do not specify the basis on which the discretion is to be exercised. It was clear that the Paulsen application might potentially have an adverse impact on the LSCFN Treaty right to have access to the 65 hectares for subsistence “harvesting” of fish and wildlife, and that such impact would include the First Nation’s beneficial use of the surrounding Crown lands to which its members have a continuing treaty right of access.

There was at least the possibility that the impact would be significant in economic and cultural terms. The Director was then required, as a matter of both compliance with the legal duty to consult based on the honour of the Crown and procedural fairness to be informed about the nature and severity of such impacts before he made a decision to determine (amongst other things) whether accommodation was necessary or appropriate. The purpose of consultation was not to reopen the LSCFN Treaty or to renegotiate the availability of the lands for an agricultural grant.

Such availability was already established in the Treaty. Consultation was required to help manage the important ongoing relationship between the government and the Aboriginal community in a way that upheld the honour of the Crown. [ 74 ] This “lower end of the spectrum” approach is consistent with the LSCFN Treaty itself which sets out the elements the parties themselves regarded as appropriate regarding consultation (where consultation is required) as follows: “Consult” or “Consultation” means to provide: (

a) to the party to be consulted, notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter; (

b) a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and (

c) full and fair consideration by the party obliged to consult of any views presented. (LSCFN Treaty,

Chapter 1) At the hearing of this appeal, counsel for the First Nation contended that the territorial government has “to work with the Aboriginal people to unde

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