Yukon Court Of Appeal Finds Duty To Consult Exists When Recording Mineral Claims

On December 27, 2012, the Yukon Court of Appeal ruled in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 that the Yukon government has a duty to consult with First Nations when recording mineral claims in the First Nation's asserted traditional territory (i.e. non-treaty area). This decision is significant because the Court found the duty to consult exists even though the relevant legislation gave essentially no discretion to the officials recording the claims.

Summary of the Case

The Yukon Quartz Mining Act allows an individual to obtain mineral rights by physically staking a claim and subsequently recording the claim with the Yukon Mining Recorder. The Mining Recorder has no discretion to refuse to record a claim if it complies with the technical mineral claim staking requirements of the act. Once a mineral claim is recorded, the Quartz Mining Act allows for certain "Class 1" exploration activities to be carried out on the land without further permits or authorizations, and without further notice to the Yukon government or any aboriginal consultation. The Ross River Dena Council sought declarations that the Yukon government has a duty to consult in these circumstances with respect to the recording of mineral claims within its asserted territory and that this duty was breached by a lack of consultation prior to recording such claims.

In the decision, the Court considered the application of the principles from Haida Nation v. British Columbia (Minister of Forests) ("Haida")1in this context. The Court found that it was clear the Yukon government had notice of the aboriginal rights and title claims (the first part of the Haida inquiry); however, the Court's analysis of the next two questions was not quite as simple.

1. Was there "contemplated Crown conduct"?

   The Court found that contemplated Crown conduct was present, even though the recording of the mineral claim is mandatory under the Quartz Mining Act with very limited exceptions. The Court noted that discretion in recording mineral claims was not entirely absent in the Quartz Mining Act, citing the prohibition of recording mineral claims in particular areas, but found that in any event the lack of discretion in the recording of claims does not absolve the Crown of the duty to consult.

2. Were asserted aboriginal rights and title affected by such conduct?

   The Court found that asserted aboriginal rights and title were affected by the recording of mineral claims. More...