In this decision, the Yukon Supreme Court determined that the Government of Yukon has a duty to consult First Nations with respect to recording mineral claims under Yukon's Quartz Mining Act, but that the appropriate time for consultation is after such claims are recorded. The particular declaration in this case was suspended for one year.
Under the Quartz Mining Act, the Mining Recorder must record a mining claim upon receipt of an application. Moreover, recording a claim immediately confers on the claim holder the ability to carry out a number of significant exploration activities without obtaining any additional permits or approvals. The Ross River Dena Council argued that the recording of a mineral claim triggered the Crown's duty to consult as a result of the potential adverse impacts of such activities on its Aboriginal rights and title.
The Court considered whether the recording of a mineral claim met the three-part test set out by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73: (i) whether the Crown has knowledge, actual or constructive, of a potential Aboriginal claim or right; (ii) whether there is contemplated Crown conduct; and (iii) whether there is a potential that the contemplated conduct may adversely affect an Aboriginal claim or right. Each component of the test was found to be satisfied. The Court had no trouble finding that there was Crown conduct, notwithstanding the fact that the Mining Recorder has no discretion with respect to recording a claim, reasoning that "[t]he 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 ... merely by eliminating discretion in government action or conduct." With respect to the third component of the test, the Court found that there was a potential for harm to arise, rejecting the government's submission that the impact was merely speculative. Interestingly, the Court held that appropriate time to consult was after the claim was recorded, and most notably, that the appropriate level of consultation, in the circumstances, was limited to notice that the mineral claim had been recorded.
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.
