Case information

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Aboriginal law - Self government - Land claims - Fiduciary duty - Treaty rights - Duty to consult - Whether there is a duty to consult and, where possible, accommodate First Nations’ concerns and interests in the context of a modern comprehensive land claims agreement - If there is a duty to consult, what is the scope of that duty and was it met in this case?

The Little Salmon/Carmacks First Nation entered into a land claims agreement (“Final Agreement”) with Canada and Yukon in 1997 after a long, intensively negotiated process.

On November 2001, Larry Paulsen submitted an application for an agricultural land grant of approximately 65 hectares of Yukon Crown land. The land is within the boundaries of the Respondent Mr. Sam’s trapping concession issued to him under the Wildlife Act, R.S.Y. 2002, c. 229, which grants him the exclusive right to trap commercially in the area. Under s. 6.2 of the Final Agreement, all Little Salmon/Carmacks members have the right of access to Crown land for subsistence harvesting in their traditional territory except where the Crown land is subject to an agreement for sale such as would be the case if the Paulsen application was approved and the land grant made. The 65 hectares represented by the Paulsen application is approximately one third of one percent of the trapline area of Mr. Sam which totals 21 435 hectares.

The Paulsen application was reviewed by the Agriculture Branch of the Yukon Department of Energy, Mines and Resources and by the Agriculture Land Application Review Committee between 2001 and 2004. Little Salmon/Carmacks was not notified of the initial review and had no opportunity to raise concerns. It was then reviewed by the Land Application Review Committee (LARC). Members of LARC include Yukon government and federal and municipal government agencies as well as Yukon First Nations including Little Salmon/Carmacks. LARC gave notice of the Paulsen application by advertising in local newspapers, mailing application material to all residents living within one kilometre of the parcel and mailing a letter and package of information to Little Salmon/Carmacks, the Selkirk First Nation and the Carmacks Renewable Resources Council. The letter and package invited comments on the application within 30 days and it included notice of a meeting date. Little Salmon/Carmacks expressed its concern with respect to the Paulsen application by letter but the Director of Little Salmon/Carmacks Lands Department who normally attends LARC meetings was unable to do so when the Paulsen application was being considered. Little Salmon/Carmacks did not ask for an adjournment. It was later provided with minutes of the meeting which reflect a discussion of the First Nation’s concerns as raised in the letter. At the end of the meeting, LARC recommended that the Paulsen application be approved. Little Salmon/Carmacks continued to express opposition. It was advised that the LARC process was used for consultation but that there was no requirement under the Final Agreement to consult with Little Salmon/Carmacks in respect of agricultural land applications and consultation took place as a matter of courtesy.