Little Salmon/Carmacks First Nation et al. v. Beckman et al., (2010) 295 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 12, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 295 B.C.A.C. 1 (SCC);2010 SCC 53

Little Salmon v. Beckman (2010), 295 B.C.A.C. 1 (SCC);

    501 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] B.C.A.C. TBEd. NO.032

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 (intervenors)

(32850; 2010 SCC 53; 2010 CSC 53)

Indexed As: Little Salmon/Carmacks First Nation et al. v. Beckman et al.

Supreme Court of Canada

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

November 19, 2010.

Summary:

The Little Salmon/Carmacks First Nation Final Agreement (Treaty) was finalized in 1996 and ratified by the First Nation's members in 1997. The First Nation applied for judicial review of a decision by the Director of the Agriculture Branch (Director) to grant an agricultural land application to Paulsen in the First Nation's traditional territory, and the trapline of Sam, a member of the First Nation. The First Nation sought to set aside the Director's decision for failing to comply with the legal duty to consult and, where possible, to accommodate the First Nation, a duty based upon Crown honour.

The Yukon Supreme Court, in a decision reported at [2007] Yukon Cases (SC) 28, concluded that a duty to consult and accommodate applied to the Treaty, the duty was "deep" and it had been breached. The court quashed the decision. Yukon et al. appealed.

The Yukon Court of Appeal, in a decision reported at 258 B.C.A.C. 160; 434 W.A.C. 160, allowed the appeal, holding that a low level of consultation was required, which was met. Further, no duty to consult with the individual trapper was required. The court ordered the parties to bear their own costs. Yukon et al. appealed. The First Nation cross-appealed.

The Supreme Court of Canada dismissed the appeal and cross-appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See fifth Indians, Inuit and Metis - Topic 3 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See fifth Indians, Inuit and Metis - Topic 3 ].

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada stated that "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 eleven that arose out of and implement an umbrella agreement signed in 1993 after twenty 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." - See paragraph 2.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Little Salmon/Carmacks First Nation Final Agreement (Treaty) was finalized in 1996 and ratified by the First Nation's members in 1997 - The First Nation applied for judicial review of a decision by the Director of the Agriculture Branch to grant an agricultural land application to Paulsen in the First Nation's traditional territory, and the trapline of Sam, a member of the First Nation - The First Nation sought to set aside the Director's decision for failing to comply with the legal duty to consult and, where possible, to accommodate the First Nation, a duty based upon Crown honour - The Supreme Court of Canada held that the duty of consultation was not excluded by the Treaty, although its terms were relevant to the exercise of the territorial government discretion, as were other principles of administrative and Aboriginal law - The court held that the content of the duty to consult was at the lower end of the spectrum - It was not burdensome - Nor was it a mere courtesy - This "lower end of the spectrum" approach was consistent with the Treaty itself - The Treaty did not apply directly to the land grant approval process, which was not a treaty process, but it was a useful indication of what the parties themselves considered fair where consultation was required - It was also consistent with the jurisprudence - See paragraphs 1 to 32 and 49 to 75.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Little Salmon/Carmacks First Nation Final Agreement (Treaty) was finalized in 1996 and ratified by the First Nation's members in 1997 - The First Nation applied for judicial review of a decision by the Director of the Agriculture Branch to grant an agricultural land application to Paulsen in the First Nation's traditional territory, and the trapline of Sam, a member of the First Nation - Applications for land grants had to be reviewed first by the Agriculture Branch of the Yukon Department of Energy, Mines and Resources and by the Agriculture Land Application Review Committee (ALARC) - Another level of review was conducted by the Land Application Review Committee (LARC) - Members of LARC included Yukon government and federal and municipal government agencies as well as Yukon First Nations, including the Little Salmon/Carmacks First Nation - Under LARC's terms of reference, Yukon First Nations governments participated as members of LARC "in the review of applications and land management matters that may affect land and resource management within their respective traditional territories" - The First Nation alleged that the Director failed to comply with the legal duty to consult and, where possible, to accommodate the First Nation, a duty based upon Crown honour - The Supreme Court of Canada agreed with the Yukon Court of Appeal's conclusion that the First Nation did not make out its case - The First Nation received ample notice of the Paulsen application, an adequate information package, and the means to make known its concerns to the Director - The First Nation's objections were made in writing and dealt with at a meeting at which the First Nation was entitled to be present (but failed to show up) - Both the First Nation's objections and the response of those who attended were before the Director when, in the exercise of his delegated authority, he approved the application - In light of the consultation provisions contained in the Treaty, neither the Crown's honour nor the duty to consult were breached - Nor was there any breach of procedural fairness - Nor did the Director act unreasonably in making the decision - See paragraphs 1 to 32 and 76 to 88.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada discussed the relationship between s. 35 of the Constitution Act, 1982 and the Crown's duty to consult respecting Aboriginal people - The court stated that the obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamation of 1763 in which the British Crown pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples - The honour of the Crown had since become an important anchor in this area of the law and had been confirmed in its status as a constitutional principle - However, this was not to say that every policy and procedure of the law adopted to uphold the honour of the Crown was itself to be treated as if inscribed in s. 35 - The concept of the duty to consult was a valuable adjunct to the honour of the Crown, but it played a supporting role, and should not be viewed independently from its purpose - See paragraphs 40 to 47.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Little Salmon/Carmacks First Nation Final Agreement (Treaty) was finalized in 1996 and ratified by the First Nation's members in 1997 - The First Nation applied for judicial review of a decision by the Director of the Agriculture Branch to grant an agricultural land application to Paulsen in the First Nation's traditional territory, and the trapline of Sam, a member of the First Nation - The First Nation sought to set aside the Director's decision for failing to comply with the legal duty to consult and, where possible, to accommodate the First Nation, a duty based upon Crown honour - The Supreme Court of Canada held that "In exercising his discretion under the Yukon Lands Act and the Territorial Lands (Yukon) Act, the Director was required to respect legal and constitutional limits. In establishing those limits no deference is owed to the Director. The standard of review in that respect, including the adequacy of the consultation, is correctness. A decision maker who proceeds on the basis of inadequate consultation errs in law. Within the limits established by the law and the Constitution, however, the Director's decision should be reviewed on a standard of reasonableness ... In other words, if there was adequate consultation, did the Director's decision to approve the Paulsen grant, having regard to all the relevant considerations, fall within the range of reasonable outcomes?" - See paragraph 48.

Indians, Inuit and Métis - Topic 506

Rights - Constitution Act, 1982, s. 35 - Interpretation - [See first and fourth Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See second, third and fifth Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5522

Lands - Land claim agreements - Interpretation - [See first, second, third Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, consd. [para. 12]; refd to. [para. 105].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, consd. [para. 12]; refd to. [para. 105].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, appld. [para. 12]; consd. [para. 94].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [paras. 39, 93].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, appld. [para. 40]; refd to. [para. 93].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [paras. 41, 104].

R. v. Taylor and Williams (1981), 62 C.C.C.(2d) 227 (Ont. C.A.), leave to appeal refused [1981] 2 S.C.R. xi; 40 N.R. 539, refd to. [para. 42].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [paras. 42, 93].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 42].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [paras. 42, 105].

Rio Tinto Alcan v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al. (2010), 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [paras. 43, 122].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, appld. [para. 45]; refd to. [para. 104].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 45].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 45].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 45].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 45].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 48].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, appld. [para. 48].

Quebec (Attorney General) v. Moses et al., [2010] 1 S.C.R. 557; 401 N.R. 246; 2010 SCC 17, appld. [para. 54]; refd to. [para. 115].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 93].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 97].

R. v. St. Ann's Island Shooting and Fishing Club Ltd., [1950] S.C.R. 211, refd to. [para. 105].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 105].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 105].

R. v. White and Bob (1964), 50 D.L.R.(2d) 613 (B.C.C.A.), affd. (1965), 52 D.L.R.(2d) 481 (S.C.C.), refd to. [para. 105].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 105].

Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, refd to. [para. 105].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 105].

Osoyoos Indian Band v. Oliver (Town) et al., [2001] 3 S.C.R. 746; 278 N.R. 201; 160 B.C.A.C. 171; 261 W.A.C. 171; 2001 SCC 85, refd to. [para. 142].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 2].

Authors and Works Noticed:

Canada, Indian and Northern Affairs, Federal Policy for the Settlement of Native Claims (1993), p. 9 [para. 134].

Canada, Law Commission, Speaking Truth to Power: A Treaty Forum (2001), p. 121 [para. 111].

Grammond, Sébastien, Aménager la coexistence: Les peuples autochtones et le droit canadien (2003), p. 247 [para. 103].

Newman, Dwight G., The Duty to Consult: New Relationships with Aboriginal Peoples (2009), pp. 18, 41 [para. 103].

St-Hilaire, Maxime - see Saint-Hilaire, Maxime.

Saint-Hilaire, Maxime, La proposition d'entente de principe avec les Innus: vers une nouvelle génération de traités? (2003), 44 C. de D. 395, pp. 397, 398 [para. 111]; 407 [para. 134].

Stevenson, Mark L., Visions of Certainty: Challenging Assumptions, in Law Commission of Canada, Speaking Truth to Power: A Treaty Forum (2001), p. 121 [para. 111].

Williams, Robert A., Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (1997), generally [para. 111].

Yukon, Agriculture for the 90s: A Yukon Policy (1991), generally [paras. 16, 188].

Counsel:

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 intervenor, the Attorney General of Canada;

Hugues Melançon and Natacha Lavoie, for the intervenor, the Attorney General of Quebec;

Rolf Pritchard and Justin S.C. Mellor, for the intervenor, the Attorney General of Newfoundland and Labrador;

Brian A. Crane, Q.C., for the intervenors, the Gwich'in Tribal Council and Sahtu Secretariat Inc.;

Jean-Sébastien Clément and François Dandonneau, for the intervenor, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority;

James M. Coady, Dave Joe and Daryn R. Leas, for the intervenor, the Council of Yukon First Nations;

Joseph J. Arvay, Q.C., and Bruce Elwood, for the intervenor, the Kwanlin Dün First Nation;

James R. Aldridge, Q.C., and Dominique Nouvet, for the intervenor, Nunavut Tunngavik Inc.;

John Donihee, for the intervenor, the Tlicho Government;

Robert J.M. Janes and Karey M. Brooks, for the intervenor, the Te'Mexw Nations;

Peter W. Hutchins and Julie Corry, for the intervenor, the Assembly of First Nations.

Solicitors of Record:

Lawson Lundell, Vancouver, B.C., for the appellants/respondents on cross-appeal;

Pape Salter Teillet, Vancouver, B.C., for the respondents/appellants on cross-appeal;

Attorney General of Canada, Vancouver, B.C., for the intervenor, the Attorney General of Canada;

Attorney General of Quebec, Quebec, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the intervenor, the Attorney General of Newfoundland and Labrador;

Gowling Lafleur Henderson, Ottawa, Ontario, for the intervenors, the Gwich'in Tribal Council and Sahtu Secretariat Inc.;

Gowling Lafleur Henderson, Montreal, Quebec, for the intervenor, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority;

Boughton Law Corporation, Vancouver, B.C., for the intervenor, the Council of Yukon First Nations;

Arvay Finlay, Vancouver, B.C., for the intervenor, the Kwanlin Dün First Nation;

Rosenbloom Aldridge Bartley & Rosling, Vancouver, B.C., for the intervenor, Nunavut Tunngavik Inc.;

John Donihee, Calgary, Alberta, for the intervenor, the Tlicho Government;

Janes Freedman Kyle Law Corporation, Victoria, B.C., for the intervenor, the Te'Mexw Nations;

Hutchins Caron & Associés, Montreal, Quebec, for the intervenor, the Assembly of First Nations.

This appeal was heard on November 12, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The court delivered its reasons for judgment in both official languages on November 19, 2010, including the following opinions:

Binnie, J. (McLachlin, C.J.C., Fish, Abella, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 89;

Deschamps, J. (LeBel, J., concurring) - see paragraphs 90 to 206.