In Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 the Yukon Court of Appeal held that the Government of Yukon must consult before opening up for staking (and the acquisition of mineral title) areas covered by Aboriginal title claims of the Ross River Dena Council ("RRDC"), a non-treaty Yukon First Nation. Additionally, the Court held that an opportunity to consult with the RRDC must be inserted into the mineral title regime before certain activities could take place on mineral claims, where claim holders are presently able to undertake such activities without any permit or licence from the Crown. Recognizing that such changes might take some time to implement, the Court suspended the operation of the decision for one year.
Fasken Martineau's Kevin O'Callaghan appeared as co-counsel for the intervenor, Yukon Chamber of Mines, at the Court of Appeal.
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 the Yukon – the Ross River Area, which encompasses approximately 13% of the Yukon. 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.
Mineral claims in the 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 a 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 called the "free entry system".
The holder of a mineral 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 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 Trial Court, reiterated by the Court of Appeal, 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".
On November 15, 2011, the Supreme Court of Yukon held that the Yukon Government owes a duty to consult to the RRDC regarding the recording of mineral claims in the Ross River Area. However, Mr. Justice Veale held that the duty 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.
Court of Appeal Decision
The Court first reviewed what it called the "regime" for acquisition and management of mineral tenure in the Yukon. It found that the Quartz Mining Act provides that a person may acquire mineral title through staking and then must record that claim. The Court also found that the Mining Recorder has no discretion but to record the claim. The Court then reviewed the Class 1 activities that could take place on a mineral claim without further permit or licence from the Crown.
The Court then reviewed the triggers for the duty to consult as described in the Haida and Rio Tinto decisions of the Supreme Court of Canada: claimed Aboriginal rights, Crown decision, and potential for impact on Aboriginal rights from the Crown decision.
The Court then reviewed the third part of the test – impact to asserted rights or title:
- With respect to Aboriginal title, the Court found that the granting of mineral tenure would have an effect on Aboriginal title, noting that mineral rights may be included in Aboriginal title (although there is no case that has established this).
- With respect to Aboriginal rights the Court found that the Class 1 activities "may still seriously impede or prevent the enjoyment of some Aboriginal rights in more than a transient or trivial manner" (on a presumption of the impacts of Class 1 activities, without any evidentiary support).
Finally, the Court reviewed the second part of the Haida test – that there was "contemplated Crown conduct", and found that this part did not require an action or decision by the Crown itself. The Court held that a regime, such as the Quartz Mining Act, that provided tenure without Crown conduct, was sufficient to meet this requirement:
 The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nations can be reconciled with the Crown's right to manage resources. Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist.
However, the Court did not provide any authority supporting its conclusion that the Quartz Mining Act regime "cannot be allowed to subsist". The Court was treading new ground applying the Haida test to legislative regimes, and holding that those regimes should not be "allowed to subsist" without undertaking a full constitutional analysis. The potential confusion created by the novelty of this approach and the lack of authority may be clarified if the case is appealed."
The Court concluded that the Haida test was met and that consultation must take place; however, the provision of notice to the RRDC after a claim had been recorded (the remedy provided in the Court below) was not sufficient. The Court emphasized that consultation on these issues would have to be flexible enough to include deeper consultation, which would perhaps lead to accommodation.
The Relief Granted
The Court granted two declarations:
a) the Government of Yukon has a duty to consult with the plaintiff in determining whether mineral rights on Crown lands within lands compromising the Ross River Area are to be made available to third parties under the provisions of the Quartz Mining Act.
b) the Government of Yukon has a duty to notify and, where appropriate, consult with and accommodate the plaintiff before allowing any mining exploration activities to take place within the Ross River Area, to the extent that those activities may prejudicially affect Aboriginal rights claimed by the plaintiff.
It should be noted that the first declaration specifically allows for consultation to take place regarding the whole of the Ross River Area. Additionally, the Court recognized that the Yukon has already set aside parts of the Ross River Area as reserved from staking (set to expire in March 2013) and indicated that although further consultation would need to take place, that those reserves may be sufficient accommodation for potential impact to Aboriginal title.
The second declaration means that, in order for any exploration activities to take place within the Ross River Area, the Yukon must change the Quartz Mining Act regime such that there is some opportunity to consult after mineral tenure has been issued, but before any exploration activity can take place that might adversely affect the exercise of Aboriginal rights. This could be achieved by instituting a permit requirement for undertaking Class 1 activities with reasonable time limits that allow the opportunity for the Crown to consult with the RRDC.
The Court recognized (and the Plaintiff acknowledged) that the Yukon would likely need time to make statutory and regulatory changes in order to respond to this judgement, and suspended the declarations for a period of one year.
What should be emphasized is that the Court held that there was nothing fundamentally wrong with the free entry (or the "open entry") system, just that there needs to be some modification. After reviewing the Trial Judge's description of the importance of the free entry system, the Court held:
 ... I fully understand that the open entry system continued under the Quartz Mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting. I also acknowledge that there is a long tradition of acquiring mineral claims by staking, and that the system is important both historically and economically to Yukon. It must, however, be modified in order for the Crown to act in accordance with its constitutional duties.
 The potential impact of mining claims on Aboriginal title and rights is such that mere notice cannot suffice as the sole mechanism of consultation. A more elaborate system must be engrafted onto the regime set out in the Quartz Mining Act. In particular, the regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected.
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