Modern Treaties and the Crown’s Duty to Consult Aboriginal Peoples — Beckman v. Little Salmon/Carmacks First Nation
On November 19, 2010, the Supreme Court of Canada ("SCC") released its fifth decision dealing with the Crown’s duty to consult aboriginal peoples — Beckman v. Little Salmon/Carmacks First Nation ("Little Salmon").1 Little Salmon is significant not only because it is the first SCC decision to address modern treaties in the context of the Crown’s duty to consult aboriginal peoples, but also because of its extensive discussion of the nature of the duty and its practical application, particularly when dealing with the rights and interests of private third parties.
Little Salmon concerns an application for judicial review of a decision of the Yukon Territory government in October 2004 to approve the grant of 65 ha of surrendered Crown land ("Land") to a Yukon resident (Larry Paulsen). The Land borders the treaty settlement lands of the Little Salmon/Carmacks First Nation ("First Nation") and is part of the First Nation’s traditional territory on which its members have a treaty right to hunt and fish for subsistence.
Paulsen’s Land application was originally submitted to the Agriculture Land Application Review Committee ("ALARC") which approved Paulsen’s application (subject to reconfiguration to address soil, environmental, wildlife and other concerns). The ALARC sent Paulsen’s Land application to the Land Application Review Committee ("LARC"), which includes First Nations’ representatives. Prior to the meeting of the LARC, the First Nation sent a letter of opposition to LARC outlining its concerns with the proposed Land application, namely that the proposed grant of 65 ha would be a significant deterrent to the ability of a First Nation trapper to continue his traditional trapping activities. No First Nation representative attended the LARC meeting held on August 13, 2004. The LARC met and its minutes indicate that the LARC considered the First Nation’s concerns and recommended that the Land grant proceed (subject to a few additional conditions, such as an archaeological assessment). On October 18, 2004 the Director of the Agriculture Branch approved the Paulsen Land application.
At issue was whether the Little Salmon/Carmacks First Nation Final Agreement (ratified in 1997) ("Treaty") precluded any duty on the Yukon Territory government to consult the First Nation because there was no express requirement for such consultation set out in the Treaty. The government argued that the Treaty was a "complete code" and all of its consultation obligations were set out therein.
The Yukon Court of Appeal2 held, like the trial judge,3 that the Treaty did not exclude a broader duty to consult, which in this case both courts decided was at the lower end of the consultation spectrum. The Court of Appeal, disagreeing with the trial judge, also held that the government’s duty had been met in this case.
The SCC unanimously dismissed the appeal and cross-appeal. Binnie J. (McLachlin C.J., Fish, Abella, Charron, Rothstein and Cromwell JJ.) for the majority held that the Treaty is not a "complete code" in that the honour of the Crown and the duty to consult aboriginal peoples exist independently of contract or the Treaty and that the duty was met in this instance.
Deschamps J. (LeBel J.) in a minority opinion held that the Treaty expressly dealt with the issue of the transfer of Crown land and therefore, the provisions of the Treaty should apply and not an overarching duty to consult, notwithstanding the provisions of the Treaty. Deschamps J. held that the decisions relating to the Paulsen Land application were consistent with the Treaty and therefore the First Nations’ appeal should be dismissed.
The SCC also framed the issue as not only being about the rights and expectations of the First Nation but also about the rights and expectations of other Yukon residents to "good government".4 Binnie J. stated that Mr. Paulsen was entitled to a government decision that was procedurally fair and made within a "reasonable timeframe". Binnie J. also stated that the entitlement of Johnny Sam (the First Nation trapper whose trapline could be affected by the Land grant) was a "derivative benefit" based on the collective interest of the First Nations and confirmed that, as an individual, he was not a "necessary party to the consultation."5
Binnie J. began his reasons by framing the overall issues at stake — namely whether the Treaty is a "complete code" and whether the honour of the Crown, as it applies to section 35, Constitution Act, 1982, continues to apply to a sophisticated contract (i.e. the Treaty) in such a way as to maintain a requirement of consultation even though it is not expressly required in certain parts of the Treaty. Binnie J. states that the Treaty will not be able to fulfill its objective of reconciliation if territorial officials interpret it in an "ungenerous manner, or as if it were an everyday commercial contract."6 Binnie J. confirmed that the Treaty is not an end-point but rather an important "step" along the path of reconciliation.7
Binnie J. concluded that the Treaty was not a "complete code" and that the honour of the Crown is a constitutional principle and exists independently of any such treaty or contract. Once a procedural deficiency was found in the Treaty, it was appropriate for consultation to be utilized to address this procedural gap.8 At the same time though, consultation is not a stand-alone concept — it is part of the honour of the Crown and it plays a "supporting role" thereto.9 The SCC stated that courts should strive to respect the drafting and ultimate agreement reached by the parties, but this cannot displace the overarching application of the honour of the Crown.10 The Crown cannot contract out of the honour of the Crown.11
The duty to consult is applied to the Treaty as a matter of law — it does not affect the agreement or Treaty itself because it is simply part of the "essential legal framework within which the Treaty is to be interpreted and performed."12
Interestingly, Binnie J. states that the adequacy of consultation is to be reviewed on a standard of correctness.13
This appears to contradict the SCC’s earlier decision in Haida Nation v. B.C. wherein the SCC stated that process of consultation was to be judged on a standard of "reasonableness".14
On the issue of accommodation, the SCC held that there is no "substantive right" of accommodation — it is not found in the Treaty, in general law, constitutional law or otherwise. Courts will be focused on ensuring that whatever outcomes result from consultation that they be within a range of what would be "reasonable".15 There was no evidence that the Director made a "palpable error" of fact in his conclusion.16 Binnie J. stated that whether a court would have made a different decision "is not relevant".17
On the facts, Binnie J. stated that, in this case, the duty that was owed was at the lower end of the spectrum and that it was "not burdensome".18 He further held that consultation was made available, was not limited to available public processes, and did take place through the LARC process.19
The following discussion relates only to the majority reasons of Binnie J.
Little Salmon is a significant decision in the area of aboriginal law generally and specifically as it applies to the interpretation of modern treaties and the duty to consult. As such, the following comments are intended to be high level, as the decision has many layers of complexity and raises important issues for future consideration and judicial determination.
Little Salmon stands for the proposition that modern treaties are to be interpreted "generously" and within the context of the written terms of the treaty text. Binnie J. states that the Treaty will not be able to fulfill its objective of reconciliation if territorial officials interpret it in an "ungenerous manner, or as if it were an everyday commercial contract." What is also noteworthy about this point is that it seems to also suggest that most agreements between the Crown and aboriginal peoples may not be deemed to be "everyday contracts" if they have an aspect of "reconciliation" to their purpose, terms or conditions. As such, Crown representatives and lawyers would be well-advised to carefully consider all such contracts from the perspective of whether the honour of the Crown is engaged and in fulfilling the honour of the Crown.
Binnie J. also addressed the "long road of reconciliation" and how treaties, by themselves, are simply one step along this road. This is also a significant statement in that it appears to challenge the prevailing view (for example held by the B.C. government in the B.C. treaty process) that treaties are an end point to certainty and predictability. Indeed, as the SCC confirmed, treaties can be a critical component to such certainty, but the actual road of reconciliation is more like a journey than a single event.
It is also significant that Binnie. J. held that the adequacy of consultation should be reviewed on a standard of correctness, which appears to contradict the SCC in Haida wherein the SCC stated that process of consultation was to be judged on a standard of "reasonableness". However, this apparent contradiction may be balanced by Binnie J.’s comments that there is no substantive right of accommodation and that the decision or action taken based on the outcome of consultation must simply be within a "reasonable range". This is further confirmed by the SCC’s statement that it does not matter whether a court would have come to a different decision — thereby illustrating more deference to the Crown decision-maker and the range of reasonableness to their decision-making processes and the substance of their decisions themselves.
Little Salmon also confirms that individual First Nation members are not necessary parties to a consultation where it is clear that the First Nation itself holds the collective interests of its constituent members.
There also appears to be, as there has been in other SCC decisions dealing with section 35, a focus on reminding governments that not only are the interests and rights of aboriginal peoples to be considered, but also the interests and rights of non-aboriginal Canadians — including in respect of efficient decision-making by governments. This balancing act, imposed on the Crown by the SCC’s interpretation of section 35, is a consistent theme from the SCC in the vast majority of section 35 caselaw.
Finally, Little Salmon is another decision, among now many, from the SCC that confirms that section 35, indeed aboriginal law generally, is part of the general Canadian legal system and that broader rules and principles in that system apply equally to section 35 and aboriginal peoples.
1 2010 SCC 53.
2 2008 YKCA 13.
3 2007 YKSC 28.
4 Little Salmon, supra note 1 at para. 34.
5 Ibid, para. 35.
6 Ibid, para. 10.
7 Ibid, para. 12.
8 Ibid, paras. 38 and 42.
9 Ibid, para. 44.
10 Ibid, para. 54.
11 Ibid, para. 61.
12 Ibid, para. 69.
13 Ibid, para. 48.
14 Haida Nation v. B.C., 2004 SCC 73.
15 Little Salmon, supra note 1 at paras. 14-15.
16 Ibid, para. 86.
17 Ibid, para. 88.
18 Ibid, para. 57.
19 Ibid, paras. 39 and 79.