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Yukon Court of Appeal Confirms That Consultation Does Not Require the Crown to Assume Aboriginal Title Exists

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Indigenous Law Bulletin

In Ross River Dena Council v. Yukon, 2020 YKCA 10, released April 30, 2020, the Yukon Court of Appeal addressed the scope of the duty to consult with respect to impacts to asserted, but not yet established, Aboriginal title. The Court held that there is no duty to consult on the full “suite of rights and interests” prior to establishment of title; rather, consultation must address those rights upon which there may be an “appreciable adverse effect”.

Yukon issues hunting licences and seals permitting the harvest of big game in Yukon (the “Licenses”), including lands to which the Ross River Dena Council (“RRDC”), a representative of the Kaska Nation, asserts Aboriginal title. Yukon accepts that issuing the Licenses triggers a duty to consult on wildlife matters and consulted with the RRDC with respect to these impacts.

In this proceeding, RRDC sought a declaration that Yukon had a further, specific duty to consult regarding the fact that hunters who receive the Licenses use and occupy the RRDC’s claimed territory. RRDC argued that the hunters’ presence itself might adversely affect their right to the “exclusive use and occupation” of the land, a right that is incident to Aboriginal title, and that this violation of the “incidents” of asserted title required Yukon to consult.

The Court dismissed the claim for two primary reasons.

First, the Court of Appeal held that the Licenses did not give a holder the right to enter land that it could not otherwise enter.

Second, the Court held that at its core, RRDC’s argument amounted to a claim that, at the present time, it could control who enters its claimed territory, and therefore Yukon must consult with RRDC whenever it contemplates action that would allow or encourage others to enter the land. RRDC argued this is the case even when the action will have no adverse impact on the land.

The Court rejected RRDC’s argument, finding that without an established claim “RRDC does not have an exclusive right to control the use and occupation of the land at present, nor does it have a right to veto government action”. Moreover, the Court held that the RRDC had not identified an adverse impact that would affect RRDC’s ability to fully realize the benefits of Aboriginal title if and when it is established. The Court concluded the duty to consult “as a means to preserve interests in the interim” was not engaged.

This decision reinforces that the Crown must consult on the effect of activities on the claimed rights of Indigenous groups, but does not have to assume that Aboriginal title (and all that goes with title) exists in order to fulfil that duty. Prior to proving Aboriginal title, the Crown’s obligation to Indigenous groups does not extend to granting an Indigenous group effective control over the use and occupancy of the land.

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