Canada: Asserting Aboriginal Title Does Not Alter Crown's Duty To Consult

Last Updated: June 21 2019
Article by Arend J.A. Hoekstra and Thomas Isaac

On May 27, 2019, the Supreme Court of Yukon considered, in Ross River Dena Council v Yukon,1 whether the Crown’s obligations pursuant to the duty to consult change when Aboriginal title is asserted. In concluding that assertions of Aboriginal title do not alter the content of the Crown’s duty to consult, the Court provided practical guidance on the content of ‘deep consultation,’ and suggested that there are circumstances, such as the issuing of individual hunting licences, where it is neither practical nor appropriate for the Crown to consult.

The Ross River Dena brought an “application for a declaration that Yukon failed to consult, and where indicated, to accommodate” Ross River Dena when it issued hunting licences in areas subject to claims for Aboriginal title.2 In particular, the Ross River Dena claimed that Yukon: (a) refused to accept that their claimed Aboriginal title to the Ross River area included the right to exclusive use and occupation of, and management and control over, that area; and (b) continued to deny that issuing hunting licences and seals might adversely affect their claimed Aboriginal title to the Ross River area.3

Depth of Consultation Required – Unique Constitutional Obligations Applied

In evaluating the Crown’s duty to consult, the Court first considered the strength of the asserted claim and noted several factors which suggested a higher strength of claim, including:  

  1. The constitutional obligations under the Rupert’s Land and North-Western Territory Order of 1870, which required that claims in the area be settled in advance of the lands being opened up for settlement;4
  2. The existence of “off and on” land claim negotiations from 1973 to 2002;5 and
  3. he set aside of lands, on an interim basis, for settlement purposes.6

In addition to “the longstanding constitutional recognition of the [Ross River Dena] claim”7, the Court noted that Yukon and the Ross River Dena had entered into a comprehensive Framework Agreement lasting between January 2016 and March 2017 (during which time the case was brought) which prioritized negotiations relating to fish and wildlife matters, including with regard to ongoing litigation between the parties.8 The Court concluded that as a consequence of the strength of claim and ongoing negotiations, Yukon had an “obligation to have deep consultation with the [Ross River Dena] on wildlife matters [emphasis added].”9

Asserted Aboriginal Title and the Crown’s Duty to Consult

The Court noted that the fundamental issue was “whether the ownership rights of established Aboriginal title can be applied to the duty to consult in an asserted claim for Aboriginal title.”10 In Tslihqot’in Nation,11 the Supreme Court of Canada described the principles of Aboriginal title:

Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.12

The Ross River Dena asserted that the Aboriginal title principles espoused in Tsilhqot’in Nation should apply to the duty to consult as a consequence of an asserted claim for title.13

The Court noted that Ross River Dena were at the claim stage of asserting Aboriginal title, and had not yet established Aboriginal title.14 As a consequence, while the duty to consult in these circumstances required “deep consultation and accommodation, if appropriate”15, the Ross River Dena did “not have a right to veto any development or impose a duty to agree or require [Ross River Dena] consents to any development in the Ross River Area.”16 In short, the principles of Aboriginal title, as described in Tsilhqot’in Nation, did not apply to the duty to consult.17

Evidence of Deep Consultation

The Court found that Yukon “consulted extensively with Ross River Dena”.18 This consultation included providing notification of planned wildlife initiatives;19 sharing specific wildlife data and information;20 and providing funding to participate in discussions and negotiations with Yukon, and to participate in game check and land steward programs.21 There was “a lot of correspondence as well as many meetings and discussions between the representatives,” which included many specific proposals put forward by Ross River Dena.22

In response to these communications and a population decline of the Finlayson Caribou Herd, Yukon closed the permit hunt for that species specifically for the 2019/2020 hunting season;23 however, Yukon did not consider there to be a depletion of wildlife resources generally in the Ross River Area (an assertion of the Ross River Dena), or that a broader hunting moratorium proposed by the Ross River Dena was necessary.24

Conclusions of the Court

The Court concluded that the consultation process conducted by Yukon amounted to “deep consultation”, and that there had “been no breach of the duty to consult, and where appropriate, to accommodate.”25

The Court also concluded that there was no “requirement for Yukon to consult with respect to the incidents of Aboriginal title set out at para. 73 in Tsilhqot’in Nation on the basis of an established Aboriginal title [emphasis added].”26

In its conclusion, the Court also noted that there was no obligation for Yukon to consult prior to the issuance of each hunting licence and seal, as it would not be “practical nor appropriate to make every holder of a licence and seal in Yukon subject to a duty to consult Ross River Dena prior to issuance.”27


While the facts at issue are unique, Ross River Dena provides practical guidance for understanding the Crown’s duty to consult.

First, the Court reaffirmed that the assertion of Aboriginal title does not fundamentally change the Crown’s duty to consult. The principles of Aboriginal title in Tslihqot’in Nation apply only where Aboriginal title has been established.28

Second, even where the duty to consult is deepest (in this case, as a result of unique constitutional obligations supporting claims to Aboriginal title), the duty to consult remains focused on a process rather than an outcome. The rights holder does not have a veto, and there is no duty to agree or require the consent of the Indigenous party.29 Even in circumstances requiring deep consultation, accommodation is not guaranteed, but instead is required “if appropriate.”30

Third, the Court suggested that there are occasions where, in consideration of practical factors, the Crown’s duty to consult should not arise. While the Court referred specifically to the granting of hunting licences and seals,31 there are other analogous circumstances where it may “not [be] practical nor appropriate” to subject every application or authorization to the duty to consult.32 One potential example would be the issuing of mineral claims or prospecting authorizations. In these types of circumstances, it may be justifiable for the Crown to consult in relation to the overarching structure, and in doing so, communicate its intention to not consult on individual decisions. Given the Supreme Court of Canada’s decision in Mikisew,33 which suggested that there is no duty to consult with regard to legislation, it is unclear whether a legislative decision could empower a regime in which the transactional decisions also avoid the duty to consult, thereby creating a process with no opportunity for consultation.

Fourth, while the decision in Ross River Dena v Yukon addressed issues of Aboriginal title, the decision fundamentally related to the protection of wildlife. Even without a claim for Aboriginal title, the duty to consult would have continued to arise in relation to other asserted Aboriginal rights. As a consequence, it is difficult to identify what, if any, additional duty was owed on account of the assertion of Aboriginal title. The case for potentially adverse impacts in these circumstances (including to both asserted harvesting rights and title rights) was fundamentally more robust than that seen in the 2017 decision of Mill River34, for example, which addressed lands subject to claims of Aboriginal title alone, without associated impacts to other Aboriginal rights. Our summary of the Mill River decision can be found here.

The Cassels Brock Aboriginal Law team has extensive experience with regulatory processes, the duty to consult, project and resource development, negotiations, and advocacy, including in relation to assertions of Aboriginal title. We work on matters across all of Canada’s provinces and territories. Our core team includes: Thomas Isaac, Jeremy Barretto, Arend Hoekstra, Emilie Lahaie, and Jared Enns. Please feel free to contact any member of our team to discuss any matter related to Aboriginal Law.


1Ross River Dena Council v Yukon, 2019 YKSC 26 [Ross River Dena].

2Ibid at para 14.

3Ibid at para 15.

4Ibid at paras 18-20.

5Ibid at para 23.

6Ibid at para 24.

7Ibid at para 26.

8Ibid at para 25.

9Ibid at para 26.

10Ibid at para 28.

11Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014 2 SCR 257].

13Ross River Dena, supra note 1 at para 30.

14Ibid at para 32.

15Ibid at para 33.

16Ibid at para 33.

17Ibid at para 33.

18Ibid at para 35.

19Ibid at para 36.

20Ibid at para 37.

21Ibid at para 38.

22Ibid at para 39.

23Ibid at para 45.

24Ibid at para 46.

25Ibid at para 48.

26Ibid at para 51.

27Ibid at para 54.

28Ibid at para 33.

29Ibid at para 33.

30Ibid at para 33.

31Ibid at para 54.

32Ibid at para 54.

33Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40, [2018] 2 SCR 765.

34Mi’kmaq of PEI v Province of PEI et al, 2018 PESC 20 [Mill River].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions