An unresolved assertion of Aboriginal title does not fundamentally change the Crown’s duty to consult and duty to consult does not provide for a veto, says a recent decision from the Yukon Supreme Court.
But although the council “asserted” Aboriginal title, it didn’t have it, said the decision by Chief Justice of the Yukon Supreme Court Ron Veale. Aboriginal title is a right of exclusive use, enjoyment, occupancy and possession and it was established in the 2014 Tsilhqot’in Nation v. British Columbia Supreme Court case, says Hoekstra.
The council argued that the Yukon needed to live up to its responsibility under Tsilhqot’in, and the court said that, although Yukon had a strong duty to consult the council, until its Aboriginal title claim was resolved through treaty or in court, it cannot decide who comes on to the land and who does not. Aboriginal title is an exclusive right, different from other Aboriginal rights, such as hunting rights, under which others are entitled to use the land for other purposes at the same time, says Hoekstra.
The council had on-and-off negotiations with the federal government from 1972 to 2002 to settle the claim, but they have yet to reach a conclusion.
“Everything's still up in the air and the court essentially hangs their hat on that distinction,” Hoekstra says. “There do seem to be good reasons for Aboriginal title. But until you cross that threshold and prove it or sign the treaty, you live in a different world.”
The duty to consult can be measured on a spectrum, says Hoekstra. The spectrum was laid out in the Haida Nation v. British Columbia (Minister of Forests) decision of 2004 — a case in which the Haida Nation of B.C. challenged the provincial government’s giving tree farm licences to logging companies.
On the low end of the spectrum, where the claim for Aboriginal title is weak and the disturbance from the outside group — for example, a corporation or government — is minimal, the consultation is less involved, but when there is a strong claim to Aboriginal rights and the proposed infringement on the territory could have a significant detrimental impact, the duty is stronger and the consultation must be more extensive, he says. The court found the Yukon Government’s duty in Ross River Dena Council was on the high end.
The high end of duty requires what the court called “deep consultation” and that involves an opportunity to make submissions for consideration, formal participation in decision-making processes, documentation showing the Aboriginal concerns were considered and that those considerations impacted the final decision, Hoekstra says.
“One of the challenges the court faces is; How do you deal with Aboriginal title before it's proven, and how do you deal with it after?” he says. “Afterwards, the Crown still has a lot of control, but they have to justify why they're interfering with Aboriginal title. Beforehand, though, the only constraint on the Crown is really that they must act honourably.”
Two key factors the court said created an imperative for deep consultation were that the council had spent 30 years negotiating an Aboriginal title claim and that the region is subject to the Rupert’s Land and North-Western Territory Order of 1870 — a constitutional document that called for settling treaties with Indigenous groups before opening the land for development.
The court emphasized that the Crown’s duty to consult does not mean the Aboriginal side has a veto and Hoekstra says this principle is best summed up by a quote from the 2017 SCC decision Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations):
“The duty is to consult and, where warranted, accommodate. Section 35 guarantees a process, not a particular result.”
The courts are still trying to find a threshold as to what activates the duty to consult, Hoekstra says. A 2012 decision (also involving the Ross River Dena Council) Ross River Dena Council v. Government of Yukon stated that those staking mining or mineral claims had a duty to consult on each one, but in Ross River Dena Council v. Yukon the idea of consulting on each individual hunting licence was seen by the court as impractical, he says.
“The law is still trying to figure out what is workable, what is reasonable. At what point does it make sense for the government to step in and consult? And at what point do we say, these are small enough or the transactions are numerous enough that it's impractical? And we're still trying to get some depth on that,” he says.
Left unanswered in this and other recent Aboriginal law decisions is what consultation looks like when hunting or other Aboriginal rights are not involved and the only issue is a claim of aboriginal title, says Hoekstra.
“When all that’s at issue is Aboriginal title . . . what are the rights at issue there? And I think that still has to be resolved,” he says. “We're definitely going to see the courts dabble in that in the future.”