Introduction
On November 15, 2011, Veale J. of the Supreme Court of Yukon released his reasons in Ross River Dena Council v. Government of Yukon.1 He allowed Ross River Dena Council's (RRDC) application for a declaration that the Government of Yukon has a duty to consult with respect to recording quartz mineral claims, but held that the appropriate time for consultation was after such claims were recorded.
Background
In the decision, the Court was asked to determine whether the Crown's duty to consult was triggered by the recording of mineral claims under the Quartz Mining Act (Act).2
The Act establishes a "free entry" mineral tenure system and sets out the requirements to locate a mineral claim. Under the Act, upon receipt of an application to record a mining claim, the Mining Recorder has no discretion and must record the claim. However, recording a claim under the Act immediately confers on the claim holder the ability to carry out a number of significant exploration activities without obtaining any additional permits or approvals. These activities, described as "Class 1" exploration activities under the Act, include the construction of camps, storage of fuel, construction of lines and corridors and carrying out clearing and trenching (subject to certain limitations).3 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 of the Class 1 exploration activities on the aboriginal rights and title asserted by RRDC.
The Decision
Veale J. considered whether the recording of a mineral claim met the three-part test to determine whether the Crown has a duty to consult as set out in Haida Nation v. British Columbia (Min. of Forests):4
- does the Crown have knowledge, actual or constructive, of a potential aboriginal claim or right;5
- is there contemplated Crown conduct; and
- is there a potential that the contemplated conduct may adversely affect an aboriginal claim or right?
Veale J. also addressed whether declaratory relief ought to be granted if the three-part test is met, and if so, whether the duty to consult arises before or after the mineral claim is issued.
(1) Did the agreements amount to knowledge by the Crown of a potential claim or right?
To trigger the duty to consult, the Crown must have knowledge of a claim.6 Veale J. found that RRDC's claim was a "strong case" sufficient to satisfy this first part of the test.7 We note that the Government of Yukon also acknowledged that the first part of the test was met.
(2) Is there Crown conduct?
For the duty to consult to arise, there must be Crown conduct engaging a potential Aboriginal right which may adversely impact on the claim or right in question.8 Veale J. found this second part of the test was satisfied on a number of grounds, despite the non-discretionary nature of the government conduct and legislative scheme. In particular, Veale J. rejected the Government of Yukon's submission that the Act does not give rise to Crown conduct or decision based on discretion, and thus does not amount to government action that engages the duty. The Chamber of Mines similarly submitted that since staking only triggered a statutory duty to record, the government did not actually take any action. Veale J. rejected the proposition that the duty to consult only arises in discretionary-decision cases as being too narrow. The reason is, "[t]he duty to consult is a constitutional principle that applies "upstream" of a statute like the [Act]. It would be surprising if a statute could be sheltered ... merely by eliminating discretion in government action."9 Thus, the test is whether there is any Crown conduct, not just if the conduct involves discretion.
(3) Is there potential that the conduct may adversely affect the claim?
The claimant must prove causality between the proposed government conduct and potential for adverse impact on pending Aboriginal claims.10 However, Veale J. was also satisfied this final part of the test had been met for the following reasons.
First, he rejected the Government of Yukon's submission that the impact was speculative because of no evidentiary basis to assess the proposed conduct. Veale J. viewed the potential as existing whenever the Mining Recorder recorded a mineral claim. After all, "it is not difficult to see the potential for adverse impact ... if all of the activities permitted in a Class 1 exploration program took place."11
Second, Veale J. held that the potential is not eliminated through the operating conditions of Schedule 1 to the relevant regulation, because of the clear limitations to the reclamation. He also questioned the government's ability to monitor Class 1 programs without requiring notice.
Third, Veale J. rejected the Government of Yukon's submission that no causality existed between the recording and potential adverse impacts. Veale J. reasoned that the recording is Crown conduct. "The duty does not require an immediate physical impact on lands and resources to be triggered, but rather the potential for adverse impacts on aboriginal claims or title."12 Veale J. also relied on the similarity between the recording of a quartz mineral claim and the transfer of a Tree Farm Licence in Haida.
However, Veale J. distinguished between tree farm licensing and mineral rights in addressing the Government of Yukon's submission that there is no way to meaningfully consult before recording. Veale J. held that "the appropriate time for consultation is after the grant of the mineral claim."13 Moreover, Veale J. held that appropriate consultation in these circumstances was limited to notice by the Yukon government that the mineral claim had been recorded. Finally, Veale J. suspended the declaration of this duty to consult for one year.
Commentary
In most Canadian jurisdictions, exploration activities similar to the Class 1 activities under the Act are not automatically granted upon the registration of a claim. Rather, additional authorizations are often required in order to carry out any significant exploration work. In this decision, the Court notes that the act of staking and locating a mineral claim causes minimal environmental disturbance.14 These comments appear to support the proposition that, absent the additional exploration rights that recording a claim under the Act gives rise to, the Crown's duty to consult may not have been triggered at all. Accordingly, this decision must be viewed in the specific context of the Act and does not stand for the general proposition that recording a mineral claim in and of itself is an activity to which the Crown's duty to consult applies.
The Court's conclusion that the Crown's duty to consult is triggered in respect of the recording of mineral claims under the Act is not surprising given that the grant of the claim carries with it the right to carry out exploration activities which clearly have the potential to adversely impact upon aboriginal rights or interests. In this respect, it is unfortunate that the Yukon mineral claim regime expressly ties the right of free entry, so critical to the exploration and mining sectors in Canada and elsewhere in the world, to the Class 1 exploration activities.
In fashioning its remedy, the Court appears to consider briefly whether the Crown conduct in question was the enactment of legislation that provided for a non-discretionary obligation on the part of the Mining Recorder to register mineral claims. While the Court notes that Rio Tinto left open the possibility that government conduct includes legislative action,15 Veale J. did not direct his remedy at the Act but rather concluded the Yukon government could consult after the grant of the mineral claim. In our respectful view, although this remedy reflects the difficult issue that the Court was asked to resolve, it is not consistent with the decisions of the Supreme Court of Canada, including Haida and Rio Tinto. In particular, we note that meaningful consultation requires that there is the possibility of accommodation16 and that the Act does not appear to provide any authority for the Yukon government to take any steps to impose conditions on or otherwise prevent a mineral claims holder from carrying out Class 1 exploration activities once the claim is granted. Accordingly, it is unclear for what purpose consultation would be carried out once the claim had been granted or how providing notice would be sufficient for satisfying the Crown's obligations.
Finally, we note that the Court suspended the effect of its declaration for a period of one year and appears to send a strong message to both the Yukon government and Ross River that further litigation in respect of this issue is not necessary or fruitful.17 In our view, Veale J. is signaling to the Yukon government that it should revisit the Act to ensure the tenuring regime is consistent with the Crown's duty to consult by separating free entry from Class 1 exploration activities.
Footnotes
1 2011 YKSC 84.
2 S.Y. 2003, c. 14.
3 Supra note 1 at para. 39.
4 2004 SCC 73 [Haida].
5 Supra note 1 at para. 41.
6 Ibid at para. 43 citing Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 40 [Rio Tinto].
7 Ibid at para. 46.
8 Ibid at para. 48 citing Rio Tinto at para. 42.
9 Ibid at para. 54.
10 Ibid at para. 63 citing Rio Tinto at para. 45.
11 Ibid at para. 65.
12 Ibid at para. 68.
13 Ibid at para. 73 [emphasis in original].
14 Ibid at para. 32.
15 Ibid at para. 54.
16 See Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 at para. 54.
17 Supra note 1 at para. 80.
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