The Guide cannot be relied on as legal advice respecting Aboriginal law. The Aboriginal law context, is important for engagement and consultation in Yukon as numerous court decisions apply. These will be added to over time as issues are brought to the courts for resolution.
Modern treaties have shaped the understanding and obligations of industry interested in pursuing mineral exploration in settled areas of Yukon. A few observations here will provide general understanding of this context, but full understanding of rights and obligations in this area is best gained from discussions with legal counsel.
Ultimately, there exists the requirement known as the “Crown duty to Consult” with an Indigenous group with traditional interests in a particular area of land where development is being considered. This duty finds its base in the Constitution Act, 1982, section 35 which states that “(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Over time the Crown duty to Consult has gained clarity through a number of key court decisions, including, but not limited to: Haida Nation v. BC and Weyerhaeuser, 2004 SCC 73; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44; Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. In Yukon specifically, a number of cases have contributed greater to an understanding of the Duty to Consult. These include: Beckman vs. Little Salmon Carmacks First Nation, 2010 SCC 53 and First Nation of Nacho Nyak Dun v. Yukon 2017 SCC 58 (Peel).
A number of key messages useful to set context for the Guide include:
- the Crown’s duty to Consult and, where appropriate accommodate Aboriginal peoples, is fundamentally important for achieving reconciliation;
- infringement on rights can occur where requirements are met, most important of which for the Guide is where there is a compelling public purpose (mining is included);
- the Duty to Consult was not extinguished when Modern treaties were entered into;
- Parties must bring good will to the relationship, where territorial and First Nation governments collectively govern settlement and non-settlement lands; and
- The Supreme Court highlighted the importance of the treaties as ‘meticulously negotiated by well-resourced parties’, and therefore close attention must be paid to the treaties by anyone wishing to work within Yukon.