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
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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