Canada: Recording Of Mineral Claims In The Yukon Attracts A Duty To Notify First Nations

Last Updated: December 6 2011
Article by Kevin O'Callaghan

In a recent decision, the Supreme Court of Yukon held that the Yukon Government owes a duty to consult to the Ross River Dena Council ("RRDC") regarding the recording of mineral claims in the traditional area claimed by the RRDC – a duty that could be met by notifying the RRDC of the claims once they were recorded. Mr. Justice Veale, in Ross River Dena Council v. Government of Yukon, 2011 YKSC 84, issued a declaration that the duty was owed, but suspended the effect of that declaration for one year to give the parties an opportunity to negotiate how to implement the decision.

Fasken Martineau's Kevin O'Callaghan appeared as counsel for the intervenor, Yukon Chamber of Mines, on the hearing.

To view the decision click here.


The RRDC is one group within a broader Kaska Nation and does not yet have a modern land claim agreement, unlike the majority of First Nations in the Yukon. Although negotiations have taken place in the past, a formal comprehensive offer to settle the land claims of Ross River Dena Council and Liard First Nation was made in 2002 and was not accepted. The RRDC claimed aboriginal rights and title throughout the Kaska Traditional Territory, but restricted their claim for the purposes of this action to a smaller area in the north-western corner of Yukon – the Ross River Area, which encompasses approximately 13% of Yukon land. RRDC and the Governments of Canada and Yukon have entered into a number of agreements on different issues, in which there is recognition by government of the claims of the RRDC (or the Kaska) to aboriginal rights and title within the Kaska Traditional Territory.

The Court noted that Yukon has experienced such an explosion of quartz claim staking in recent years that "it is often referred to as the second gold rush". In 2010, 79,993 quartz claims were staked and exploration expenditures topped $160 million. There are currently three operating mines in Yukon and one is in Kaska Territory.

Mineral claims in Yukon are acquired by physically staking the claim in the field. The Quartz Mining Act provides at s.12 that "any individual 18 years of age or older may enter, locate, prospect, and mine for minerals on . . . any vacant territorial lands".  In order to record a mineral claim, that individual must provide the mining recorder with three things: a plan of the location, the fee, and an sworn application. The individual then automatically receives a Record of Mineral Claim, assigning a Grant Number and, if the claim is within Kaska Territory – the miner is notified that "[t]he land in which this mineral claim is located is subject to unsettled aboriginal land claims". The mineral claim is held indefinitely as long as certain assessment work is undertaken (or payment made in lieu).

This system is based on what is called the "free entry system", the hallmarks of which the Court held were:

[30]  The Quartz Mining Act is based upon the "free entry system", which consists of:

  1. the right of entry onto lands owned by the Crown or Commissioner (s. 12);
  2. the right of the miner to stake a claim in order to receive the mineral rights (s. 41); and
  3. the right to lease and enter into production (s. 70).

The importance of the free entry system was recognized by the Court:

[33] From the perspective of the Yukon Chamber of Mines, deciding to stake a mineral claim is a strategic and highly confidential activity. The Chamber points out that there is considerable expense and financial risk in prospecting and staking a quartz mineral claim under the free entry system. The advantage of the free entry system is that a prospector can locate a mineral showing, after considerable research and on-the-ground activity, and maintain its confidentiality until the mineral claim is recorded. It is common knowledge in the mining industry that only a small portion of the claims staked will ever proceed to the development or mining stage.

The Court recognized that the act of staking "a quartz mineral claim causes minimal environmental disturbance".  However, the holder of a mineral claim, who is required by the Act to record the claim,  is at liberty to undertake certain activities without any permit or licence from the Crown.  Pursuant to the Quartz Mining Land Use Regulation, Class 1 activities may be undertaken. These activities include: the clearing of trees, trenching, removal of bulk samples and use of explosives. Pursuant to the regulations, there are specific operating considerations, which are very comprehensive and, if followed, are designed to rehabilitate or reclaim the land to its pre-activity state. The Court held however, without pointing to any direct evidence, that the Class 1 activities "may have significant impact depending on which activity is proceeding."  Significantly, the Court also recognized, that "the Government of Yukon, and presumably Ross River Dena Council, may have no knowledge of a Class 1 exploration program activity, either in location or extent."

The RRDC applied to the Court for a declaration that the Government of Yukon has a duty to consult prior to recording the grant of quartz mineral claims within the lands comprising the Ross River Area. The Court recognized that the case was "somewhat unique as the recording of a quartz mineral claim by the Mining Recorder is not a discretionary act under the "free entry" system".

The Decision

Justice Veale recognized the leading cases from the Supreme Court of Canada – Haida and more recently Rio Tinto – have clearly articulated the test regarding the duty to consult, which arises when:

  1. the Crown has knowledge of a claim for aboriginal rights;
  2. the Crown contemplates conduct;
  3. the conduct has the potential to adversely effect the claimed right.

Regarding the first part of the test, the Court dealt with a claim from the RRDC that the fact that the Crown had, in past agreements, recognized the claim of the RRDC or Kaska to their territory meant that their claim should be treated as if it was a proven claim to title. The Court rejected this argument, concluding that the governments had only recognized that the Kaska had made a claim, not whether that claim had any validity. The Court held:

[46] ... I conclude that the acknowledgements by the Government of Yukon in the three agreements are in the context of an assertion rather than an acceptance of an established aboriginal title to the Ross River Area. However, the Ross River Dena Council claim is not tenuous but in the category of a strong case sufficiently credible to meet the threshold required by the first element of the test for the duty to consult.

The second part of the test was the critical issue in the case. Yukon and the Chamber argued that since there was no discretion, there was no actual Crown conduct – without the ability to exercise some decision, there was no duty. The Court did not accept the argument, instead finding that:

[54] ... The duty to consult is a constitutional principle that applies "upstream" of a statute like the Quartz Mining Act. It would be surprising if a statute could be sheltered from a constitutional principle merely by eliminating discretion in government action or conduct. Haida Nation and Rio Tinto are not limited to discretionary decisions but are expressly meant to apply to Crown conduct overall. ... The Government of Yukon does take action through the issuance of a Record of Mineral Claim, albeit without the exercise of discretion. As stated in the Klahoose First Nation case, the government cannot follow a legislative mandate in a manner that offends the Constitution.

As a result the recording of a mineral claim is conduct that is capable of attracting the duty to consult.

The third part of the test has to do with the potential for impacts of the conduct on the claimed rights. Here the Court recognized the arguments that there was no evidence of effects, but notwithstanding that found that "it is not difficult to see the potential for adverse impact on hunting and trapping and fishing rights, for example, if all of the activities permitted in a Class 1 exploration program took place on a staked and registered claim."  However, the Court agreed with Yukon's submission that there was no way to meaningfully consult prior to recording the claim due to practical, and secrecy, concerns relating to the free entry system.

As a result, the Court held that the duty to consult regarding the recording of a mineral claim would arise after the claim had been recorded, "when the holder of the claim has some security of tenure and the First Nation is able to determine its potential adverse impact." At this stage in the exploration process, the Court recognized that there would be no plans for development upon which the Crown could consult – "a duty to consult after the recording of the claim could only extend to notice, because in the absence of proposed exploration there is no context that would expand the duty beyond this." The Court found that this obligation to provide notice to the RRDC would not be too burdensome on the Crown and likely could be accomplished by a monthly report.

Finally, the Court held that in order to give the parties an opportunity to dialogue, that the declarations of a duty to consult be suspended for one year.


The Yukon Court has come up with a very practical solution to the issues it had before it.  The Court itself commented that there was a certain "utility" to the declaration. The Court saw its decision as providing a remedy to the dispute between the First Nation and Yukon.  Whether this decision leads, as the Court clearly hopes, to "judicial economy" – or leads to the Court of Appeal – remains to be seen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Borden Ladner Gervais LLP
McCarthy Tétrault LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Borden Ladner Gervais LLP
McCarthy Tétrault LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions