Yukon Court Of Appeal Confirms That 'Open-Entry' Mining System Does Not Preclude The Application Of The Duty To Consult

In December 2012, a three-judge Court of Appeal for Yukon decided unanimously1 that the recording of a mineral claim by the Mining Recorder, pursuant to Yukon's Quartz Mining Act (the Act),2 triggers the duty to consult. Furthermore, the court held that merely providing notice of recorded claims to affected First Nations was not necessarily sufficient to discharge the government's obligation to consult. The decision has significant implications for the mining and prospecting system in Yukon, and potentially for other open- or free-entry systems in Canada.

The Act permits individuals to acquire mineral rights by simply physically staking a claim and then recording it with the Mining Recorder. If a claim complies with the statutory requirements, the Recorder is obliged to record the claim. Once a quartz mining claim is recorded, the claimant is entitled to the minerals within the claim and may conduct certain low-impact exploration activities3 on the land without further notice to or authorization of the government.

Ross River Dena Council, the plaintiff, is one of three Yukon First Nations that have not entered into treaties with the governments of Yukon and Canada with respect to their claims to aboriginal title and rights. The plaintiff's claims are to the Ross River area in southeastern Yukon. The plaintiff asserted that the government had a duty to consult it before recording mining claims in the Ross River area, which it had failed to discharge.

"Contemplated Crown conduct"

A key issue in this case was whether the recording of a quartz mineral claim within a territory that is subject to aboriginal rights and title claims constitutes "contemplated Crown conduct"4 sufficient to require consultation. The Act does not grant the Mining Recorder any discretion: if a claim formally complies with the requirements of the statute, the Recorder must record it. On that basis, the government argued there was no "contemplated conduct" to trigger consultation.

Writing for the court, Groberman J.A. dismissed this argument, holding that, "Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate aboriginal claims are defective and cannot be allowed to subsist." Groberman J.A. acknowledged that in Rio Tinto the Supreme Court of Canada left open the question of whether "Crown conduct" includes legislative action, but interpreted this reservation narrowly, allowing that though...