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Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53

Facts:

Yukon gov approved grant of surrendered land to X, the land border the reserve and forms part of their traditional territory. LSCFN say that gov proceeded w/o consulting them. Gov says treaty is a complete code, and nowhere does it refer to consultation for land claims.

Issue(s):

Is the duty precluded by a modern land claims agreement? - NO

Ratio:

Source of the duty to consult is external the treaty – duty to consult informs the ongoing relationship set out in the treaty
**The duty to consult is imposed as a matter of law, irrespective of the parties’ “agreement”

Duty to consult it not excluded by a treaty – this is for established and not established rights

Analysis:

The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution
**BUT - the honour of the Crown gives rise to different duties in different circumstances (Haida Nation)

Source of the duty to consult is external the treaty
**It is a doctrine that applies independently of the expressed or implied intention of the parties (Haida Nation)

Content of Duty to Consult
**Look at treaty – is a useful indication of what parties considered fair
Duty of consultation was not excluded by the LSCFN Treaty, although its terms were relevant to the exercise of the territorial government discretion

Holding:

There was no breach of the duty to consult

Comments:

Summary Duty to Consult
*Duty helps court determine if court discharged its duty when looking at infringement
*Court will also find the duty to consult when claims are in asserted stage not yet proven
*Duty is meant to head of complaints
*Negotiation implied back and forth between parties
*Consultation may signal a participatory role in decisions making for Aboriginals
*What can consultation accomplish?
**Upholds the Honour of the Crown
**Promotes negotiation
**Supports a relationship between Crown and Aboriginal peoples
**Promotes reconciliation


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