The Maturation Of The Duty To Consult - Top Ten Developments Of 2017 In Canadian Aboriginal Law

2017 in Canadian Aboriginal law proved to be a watershed moment for the Crown's duty to consult, with the confluence of a number of high-profile appellate decisions—including a new trilogy of consultation cases from the Supreme Court of Canada—and the promise of sweeping legislative reforms to relevant regulatory frameworks.

Listed in no particular order, below is Dentons' take on the top 10 developments in Canadian Aboriginal law in 2017:

10. The Supreme Court finds Yukon in breach of modern treaty

    In First Nation of Nacho Nyak Dun, et al. v Government of Yukon,1 the Supreme Court of Canada concluded that the Yukon government had failed to respect the terms of its Umbrella Final Agreement ("UFA") with several Yukon First Nations. The case relates to the development of the Peel Watershed, a 68,000-square-kilometre area of wilderness covering almost a fifth of the territory's land mass. Recognizing that modern treaties "have assumed a vital place in our constitutional fabric," the Court concluded that Yukon's changes to a final development plan failed to respect the UFA's land use planning scheme, quashing the government's decision and returning the parties to an earlier stage of the approval process.

9. Federal Court finds mining company's exclusion from Aboriginal consultation process not a breach of procedural fairness

   In a pair of decisions concurrently released in December,2 the Federal Court dismissed challenges by Taseko Mines Limited ("Taseko") to a Canadian Environmental Assessment Act, 2012 ("CEAA 2012") federal environmental assessment report for the New Prosperity Gold-Copper Mine Project southwest of Williams Lake, B.C. as well as the subsequent federal government's ultimate rejection of that project. Taseko's project was opposed by the Tsilhqot'in Nation, which in 2014 became the first B.C. First Nation to be able to claim a Supreme Court of Canada-confirmed tract of Aboriginal title land.3

   The Federal Court rejected Taseko's claim that its exclusion from Aboriginal consultation meetings between the Minister and the Tsilhqot'in following the CEAA 2012 panel review constituted a breach of procedural fairness. The court noted that Taseko could not identify any information submitted by the Tsilhqot'in to the Minister as being new or different from what was previously before the CEAA 2012 panel (information to which Taseko had, therefore, an opportunity to respond). The decisions leave open certain questions regarding the scope of a proponent's right to be informed of submissions made by a First Nation during Crown consultation and to respond to these submissions when they raise new and prejudicial information. Taseko appealed both decisions to the Federal Court of Appeal.4

8. The Québec Court of Appeal confirms the jurisdiction of Québec courts to hear a case involving claimed Aboriginal rights and title in Labrador

   On November 13, 2017, the Québec Court of Appeal confirmed the jurisdiction of courts in Québec to hear a claim in damages filed by two Aboriginal communities against private companies based on the alleged violation of claimed Aboriginal rights and title over a territory situated not only in Québec...