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www.canadianlawyermag.com 45 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. Two key factors that created an imperative FAST FACTS – ROSS RIVER DENA COUNCIL The courts are still trying to find a threshold as to what activates the duty to consult, Arend 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. In Ross River Dena Council v. Yukon, however, the idea of consulting on each individual hunting licence was seen by the court as impractical, he says. for a 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."