Yukon Supreme Court Considers the Duty to Consult on Settled Treaty Lands

Canadian case law continues to refine the principles of the duty to consult and accommodate Aboriginal peoples, and the May 2007 decision of the Yukon Supreme Court in Little Salmon/Carmacks First Nation v. The Government of Yukon (Minister of Energy, Mines and Resources), 2007 YKSC 28 considers the extent of its application on recently settled treaty lands in theYukon.

The decision involved a challenge of a land disposition of 65 hectares for agricultural purposes made by the Director of the Agriculture Branch, Department of Energy, Mines and Resources for the Yukon Government which the First Nation argued was located in its traditional territory and in the area of one of its member’s traplines.  The Director gave notice of the proposed land disposition and gave all interested parties, including the First Nation, the opportunity to provide information and comments.  The land in question was Crown land within the boundaries of the Little Salmon/Carmacks First Nation Final Agreement, a comprehensive land claim agreement with the Government of the Yukon and the federal government finalized in 1997 (the “Final Agreement”).  Despite the existence of the Final Agreement and notice provided, the First Nation sought to have the Director’s decision set aside on the basis that the Crown had failed to comply with its common law duty to consult and accommodate.

The Yukon Supreme Court concluded that the duty to consult and accommodate is an “implied term of every treaty”, historical or modern day, and held that in the circumstances the Yukon Government failed to comply with the duty. The Yukon Government has appealed this decision to the Yukon Court of Appeal.  The appeal is expected to be heard in June 2008.


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Lawson Lundell's Environmental, Indigenous and Natural Resources Blog focuses on environmental, indigenous and natural resources law, as well as related litigation. Included are summaries of significant cases from Canadian appellate courts, changes in the legal framework governing resource development including energy and climate change policy, and key decisions from the more influential regulatory bodies in Canada.

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