Ross River Dena Council v. Government Of Yukon

Introduction

On December 27, 2012, the Yukon Court of Appeal (YKCA) released its reasons in Ross River Dena Council v. Government of Yukon.1The YKCA allowed the Ross River Dena Council's (RRDC) appeal and modified the declarations granted by Veale J. of the Supreme Court.2 The decision is important, as it confirms that the Government of Yukon has a duty to consult with the RRDC in connection with the recording of a mineral claim.

Background

The appeal concerned the Crown's duty to consult when a mineral claim is recorded under the Quartz Mining Act (Act).3

The Act establishes a "free entry" mineral tenure system, under which the Mining Recorder must record a mineral claim, without any exercise of discretion, upon receipt of an application that complies with statutory requirements. Recording a claim under the Actimmediately confers on the claim holder the ability to carry out a number of exploration activities without obtaining any additional permits or approvals and without providing any notice to the Crown or First Nations. These activities, described as "Class 1" exploration programs under the Act, include the construction of camps, the storage of fuel, the clearing of land, the construction of lines and corridors and the use of explosives.

The issue then was whether a non-discretionary action by the Mining Recorder, in recording a mineral claim, triggered the Crown's duty to consult as a result of the potential adverse impact on the Aboriginal rights and title asserted by the RRDC.

At the trial level, Veale J. held that the recording of a claim met the three-part test to determine whether the Crown's duty to consult is triggered, as set out in Haida Nation v. British Columbia (Minister of Forests)4 (Haida) and more recently in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (Rio Tinto): (i) the Crown had knowledge of the RRDC's asserted Aboriginal claims; (ii) there was contemplated Crown conduct in the form of the recording of a mineral claim and (iii) there was a potential that the Crown's conduct may adversely affect the RRDC's claims. However, he held that the appropriate time for consultation was after the recording of the claim, and such consultation would be limited to notice of the newly recorded claims.

For an overview of the lower court decision, see our Legal Update dated November 30, 2011.

The Decision

Does the recording of a mineral claim trigger consultation?

Groberman J.A., writing for the unanimous YKCA, also...