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Beckman v Little Salmon/Carmacks First Nation  is a leading Supreme Court of Canada case concerning the Crown’s duty to consult Aboriginal peoples within the context of a modern Treaty agreement. The case is significant for two main reasons: firstly, it is the Supreme Court’s first judgment to discuss the duty to consult within a modern treaty framework; and secondly, it offers substantial discussion on the nature of the duty and its application, particularly when it intersects with the rights of third parties and private interests.
Background & Facts:
Little Salmon/Carmacks First Nation (“Little Salmon”) entered into a modern land claim agreement (the “LSCFN Treaty”) with the federal and Yukon Territory governments in 1997.  The LSCFN Treaty is one of 11 that falls under an umbrella agreement signed in 1993 after 20 years of negotiations between the Council of Yukon Nations, the Government of Canada, and the Government of the Yukon.  Under the terms of the LSCFN Treaty, Little Salmon members retain a right of access for hunting and fishing for subsistence in the traditional territory.
In October 2004, the Yukon Director of Agriculture approved an application for 65 hectares of agricultural land made by Larry Paulsen, a Yukon resident, after recommendation from the Yukon Land Application Review Committee (“LARC”). Paulsen’s application contained lands that fell within the traditional and Treaty areas of Little Salmon. Of particular concern, the land intersected the trapline of Mr. Johnny Sam, a Little Salmon member.
Prior to its final approval in October 2004, Little Salmon wrote to LARC outlining its concerns with the proposed grant. Specifically, the First Nation submitted that the land grant would significantly interfere with the traditional hunting and trapping activities of Mr. Johnny Sam. The First Nation was invited to attend a LARC meeting reviewing the land grant scheduled for July 2014, but they failed to do so. The meeting minutes indicated that Little Salmon’s concerns were addressed. Despite this, the First Nation was not notified by the Director of Agriculture that the application had been approved until July 2005, nearly a year after its approval. 
Issue & History
Following the approval, the First Nation commenced an application for judicial review. At issue was whether the LSCFN Treaty precluded a duty of the Government of Yukon to consult with the First Nation, because consultation for land grants was not specifically provided for under the terms of the Treaty. A subsidiary issue was whether, if the duty to consult applied, it had been met based on the facts at hand.
Both chambers judge  and the Yukon Court of Appeal  held that the LSCFN Treaty did not preclude the Crown’s duty to consult in this instance, though the duty fell to the lower end of the spectrum. The Court of Appeal also held that the Yukon Government had met its duty to consult in this case, reversing the lower court on this point.
The Decision: Supreme Court of Canada
The Supreme Court of Canada unanimously dismissed the appeal. Justice Binnie, writing for the majority, held that the LSCFN Treaty did not exclude the duty to consult in this instance, as “the Crown cannot contract out of its duty of honourable dealing with Aboriginal peoples.”  He tied the “thoughtful administration of the treaty” to the overall goal of reconciliation.  However, he concluded that the duty had been met in this case. This was because Little Salmon had sufficient knowledge of the application and was entitled to submit its concerns to LARC in writing, which had been addressed at the July 2004 LARC approval meeting. 
Binnie J’s reasons are notable for highlighting the rights and expectations of non-Aboriginal persons within the consultation process. In particular, he emphasized Mr. Paulsen’s entitlement to a government decision that was procedurally fair and made within a “reasonable timeframe.”  He also framed the hunting and trapping rights of Mr. Sam as a “derivate benefit,” concluding that Mr. Sam was not an appropriate party to the consultation. 
On the extent and scope of the duty, Binnie J elaborated further:
The First Nation goes too far ... in seeking to impose on the territorial government not only the procedural protection of consultation but also a substantive rights of accommodation. The First Nation submits that its concerns were not taken seriously - if they had been, it contends, the Paulsen application would have been denied. This overstates the scope of the duty to consult in this case. The First Nation does not have a veto over the approval process. No such substantive rights is found in the treaty or in the general law, constitutional or otherwise. 
In a concurring minority opinion, Justice Deschamps concluded that the particular provisions of a Treaty, when relevant, should prevail over the common law concerning the Crown’s duty to consult.  Since the LSCFN Treaty provided a consultation mechanism for the transfer of Crown land, he stated, these terms should apply to overrule the common law. Under the circumstances, Deschamps J agreed with the majority that the Crown’s duty to consult had been met in this case, despite the delay in notifying the First Nation that the application had been successful. 
What does Little Salmon tell us about the nature and content of the duty to consult, as it pertains to modern treaty agreements? The decision is positive in the sense that it does not permit the Crown to “contract out” of its duty to consult Aboriginal peoples in the context of modern treaties. However, it is noteworthy that the Court discredited the collective Treaty rights of the First Nation as exercised by Mr. Sam under the LSCFN Treaty in favour of an individual proprietary right possessed by Mr. Paulsen. It speaks to a theme in the jurisprudence to favour individual rights over the collective, which can have the unfortunate effect of infringing upon Indigenous and Treaty rights in the process.
Until next time,
Team ReconciliAction YEG
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 2010 SCC 53,  3 SCR 103 [Little Salmon].
 Little Salmon/Carmacks First Nation Final Agreement, (1997 July 1), online: <https://www.eco.gov.yk.ca/pdf/little_salmon_carmacks_fa.pdf.>
 Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon, (1993).
 Little Salmon, supra note 1 at para 198.
 2007 YKSC 28, 296 DLR (4th) 99.
 2008 YKCA 13, 296 DLR (4th) 99.
 Little Salmon, supra note 1 at para 61.
 Ibid at para 10.
 Ibid at para 7.
 Ibid at para 35.
 Ibid at para 14.
 Ibid at para 94.
 Ibid at para 205.
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