Canadian Lawyer

September 2019

The most widely read magazine for Canadian lawyers

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PEOPLE FIRM INSIGHT 44 www.canadianlawyermag.com Insights on Aboriginal title and the duty to consult CASSELS BROCK & BLACKWELL LLP lawyer Arend Hoekstra says a recent decision from the Yukon illustrates how the courts are still examining Aboriginal consultation, when it is necessary and how involved that consultation needs to be. "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," says Hoekstra, whose practice includes duty to consult, treaty negotiations, mining projects and other matters involving Aboriginal law. Ross River Dena Council v. Yukon was a fight over the Yukon's issuing hunting licences on traditional territory to which the council claims Aboriginal title. The council argued it needed to be consulted and accommodated prior to the issuing of such licences and sought a declaration that Yukon had failed to consult since 2016. While it "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 was established in the 2014 Tsilhqot'in In a Yukon Aboriginal law decision, the court dealt with whether an unresolved claim of Aboriginal title alters the Crown's duty to consult. A Vancouver business lawyer offers insight on what that means Nation v. British Columbia Supreme Court case, says Hoekstra. The council argued the Yukon needed to live up to its responsibility under Tsilhqot'in, and the court said that though the Yukon had a strong duty to consult the council, until its Aboriginal title claim was resolved through treaty or in court, it could not 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, 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, he says. 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 DUTY TO CONSULT VERSUS ABORIGINAL TITLE 2004: Haida Nation v. British Columbia (Minister of Forests) — a case in which the Haida Nation challenged the provincial government's licensing of logging companies — laid out the spectrum on which varying degrees of duty to consult is measured. 2014: Tsilhqot'in Nation v. British Columbia — a decision by the Supreme Court that found Aboriginal title is a right of exclusive use, enjoyment , occupancy and possession and was established. Aboriginal title is an exclusive right , unlike other Aboriginal rights, such as hunting, where others can use the land for other purposes at the same time.

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