Duty To Consult Requires Identifiable, Appreciable Adverse Effect: Yt Court Of Appeal

• Published date: 25 May 2020
• Author: Mr Arend Hoekstra and Thomas Isaac
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Cassels

On April 30, 2020, the Yukon Court of Appeal dismissed an appeal by the Ross River Dena Council (RRDC)¹ (commentary on the underlying Supreme Court of Yukon decision can be found here). In its decision, the Court of Appeal confirmed that until Aboriginal title is negotiated in a treaty or established in court, simply asserting Aboriginal title does not grant any of the particular rights associated with Aboriginal title. The Court also complemented a recent decision by the PEI Court of Appeal (commentary can be found here) by noting that consultation is only required where a Crown action or decision may result in an identifiable and appreciable potential adverse effect on the asserted right.

This decision of the Yukon Court of Appeal is relevant for governments seeking to discharge their duty to consult, particularly in the context of Aboriginal title.

Facts

RRDC sought a declaration that Yukon had a duty to consult and, where appropriate, accommodate RRDC before issuing hunting permits over the lands to which they assert Aboriginal title.² The concerns of RRDC were not over wildlife matters, but over their asserted right to "the exclusive use and occupation of the Ross River Area."³ RRDC argued "that Yukon's action of issuing hunting licences and seals has a potential adverse effect on the claimed right because it interferes with the incidents of title by permitting people other than RRDC's members to use and occupy the lands."⁴

Core to RRDC's argument was whether the attributes of Aboriginal title, as previously articulated by the Supreme Court of Canada (exclusive use and occupation of the land), were subjects for consultation where there was an asserted but unproven claim for Aboriginal title.⁵

Asserting Aboriginal Title Does Not Create Rights

As noted by the Court, RRDC had not established Aboriginal title to the Ross River Area; the process was still in the early stages.⁶ Without establishing Aboriginal title, the Court concluded that RRDC did not have an exclusive right to control the use and occupation of the land, nor did it have a right to veto government action.⁷

The Court's approach appears to treat Aboriginal title consistently with the treatment of other rights such as fishing and hunting. While Aboriginal rights are generally permissive, until established through courts or treaties, they do not provide exclusive access to, or control of, a resource. As the Supreme Court of Canada said in Haida Nation v. British Columbia (Minister of Forests)...