How final is "final"?

• Jurisdiction: Canada
• Author: Edmond, John B.H.
• Date: 01 January 2009

The Doctrine

The Supreme Court of Canada in 2005 established that the honour of the Crown obliges government to consult and, where appropriate, accommodate Aboriginal concerns where a development proposal adversely affects a treaty right. This is so even though the land in question has been surrendered by the treaty. In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69, Treaty 8 of 1899 gave the Indian signatories the "right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered," though tracts could be "taken up" for settlement, mining, etc. Taking up, the Court held, in the face of the residual rights, may not occur without specific, targeted consultation with the First Nation affected, because of its adverse effect on the treaty rights. This is required by the "fundamental objective" of reconciliation with Aboriginal peoples.

The Treaty was "the first step in a long journey," and "the honour of the Crown infuses every treaty." The content of the consultation duty varies with the seriousness of the impact. The obligation is on the Crown. Both parties must engage in good faith, but "consultation will not always lead to accommodation, and accommodation may or may not result in an agreement"--there is no First Nation veto.

Modern treaties: The Yukon Precedent

In LAW NOW of November/December 2007, I asked how this doctrine might apply to modern land claims agreements, negotiated as they are with full legal support to the parties, entitled "final," and expressly intended to create a climate of certainty.

The context was Little Salmon/Carmacks First Nation v. Yukon (Minister of Energy, Mines and...