Environmental, Indigenous and Natural Resources Blog

On December 27^th, 2012, the Court of Appeal for Yukon released its decision in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14.  The case dealt with the Yukon Government’s duty to consult with First Nations when allowing mineral claims to be recorded on land with asserted Aboriginal rights and title claims. The case arose as a result of the “open entry” claim staking system and in particular, as a result of the Yukon Quartz Mining Act, S.Y. 2003, s. 14 (the Act). The Act allows individuals to obtain mineral rights by physically staking a claim and then recording it with the Mining Recorder, who is obliged to record the claim and has no discretion in this respect. The individual is then entitled to carry out limited exploration activities without further authorization.

In the lower court decision, the Ross River Dene First Nation argued that the Act was not in line with the Government’s consultation obligations as set down in Haida since the Act did not allow for consultation prior to claims being recorded. The Supreme Court of Yukon acknowledged that the scheme violated the principles of consultation laid down in Haida. However, the Court found that giving notice to the First Nations after a claim had been recorded would be sufficient to remedy the situation, and would meet the Government’s consultation obligations.  It stressed that consultation after the claim was recorded was necessary due to the confidential nature of the “open entry” claim staking system.

On appeal, the main issue was whether the lower court had erred in finding that after-the fact notice with respect to claims recording under the Act was sufficient to meet consultation obligations. The Court of Appeal confirmed that the recording of a mineral claim pursuant to the Act triggered the duty to consult. In so finding, it rejected the suggestion by the Government that the lack of discretion with respect to the claims recording under the Act could relieve it of the duty to consult. Moreover, the Court went further and said that statutory schemes which do not provide an effective consultation “cannot be allowed to subsist”.

The Court then went on to find that the trial judge had erred in holding that after-the -fact notice was sufficient to meet the duty to consult, stressing that it was not appropriate to give priority to the “open claim” staking system. The Court held the Act had to be modified to meet the Crown’s obligations, which requires meaningful consultation before aboriginal claims are affected.

In the result, the Court of Appeal issued declarations stating that the Government has a duty to meaningfully consult before recording mineral claims under the Act, and before allowing any exploration to take place. However, the declarations were suspended for one year to allow the Government to consider how to incorporate appropriate consultation into the Act.

The case is significant in several respects. First, it will likely result in changes to the “open claims” staking scheme more generally in the Yukon, given that consultation must now occur prior to the recording of the mining claims. Furthermore, other provinces with similar staking systems, in particular those that permit automatic activities on the land, may also need reconsideration. This case marks the first time that a Court has required that a statute be amended to align with the Crown’s consultation obligations. It is worth considering whether this decision will have broader implications, such that governments going forward will be required to amend statutory schemes to ensure the duty to consult is met.