Richard B. Salter

The Little Salmon/Carmacks First Nation entered into a modern comprehensive land claims agreement with the federal and territorial governments.

Under the treaty, members have a right of access for hunting and fishing for subsistence in their traditional territory.

A non-Aboriginal resident applied for an agricultural land grant within this territory, which was approved by the territorial government.

The First Nation sought judicial review, arguing the government failed to consult and accommodate them.

The Supreme Court of Canada held that the Crown has a duty to consult Aboriginal peoples before making decisions that might adversely affect their treaty rights, even in the context of a modern comprehensive land claims agreement.

However, on the facts of this case, the duty to consult was at the lower end of the spectrum and was discharged by the government.

There was no duty to accommodate.

The Province of British Columbia granted a project approval certificate to a mining company to reopen a mine, which included building an access road through the traditional territory of the Taku River Tlingit First Nation (TRTFN).

The TRTFN objected, arguing their unproven Aboriginal rights and title claims were not adequately accommodated.

The Supreme Court of Canada held that the Crown has a duty to consult and, where indicated, accommodate Aboriginal peoples prior to proof of rights or title claims, grounded in the honour of the Crown.

However, the Court found that the environmental assessment process engaged in by the Province fulfilled this duty, as the TRTFN was consulted and its concerns were reasonably accommodated in the project approval conditions.