Canada: Mineral Claims And The Duty To Consult In Yukon

Last Updated: January 22 2013

Article by Brian Abraham and Emma Irving

On December 27, 2012, the Yukon Court of Appeal handed down its decision in Ross River Dena Council v Government of Yukon, 2012 YKCA 14. The decision related to an appeal of Mr. Justice Veale's decision regarding the claim of the Ross River Dena Council ("RRDC") against the Yukon Government.

The appeal concerned the duty of Yukon to consult with RRDC when allowing mineral claims to be recorded over land on which RRDC has asserted claims of Aboriginal title and Aboriginal rights. RRDC appealed from the Chambers Judge's decision that only notice was required to be given to RRDC for recorded claims within their territory.

RRDC claims Aboriginal title over some 63,000 sq. kilometres of the southeast part of Yukon, comprising of approximately 13% of Yukon.

Under the Yukon Quartz Mining Act, SY 2003, c 14, mineral rights can be obtained by physically staking a claim and then recording it with the Mining Recorder. The staker is then entitled to ownership of the minerals within the claim and to conduct certain exploration activities without notice or government authorization.

The Court of Appeal found that RRDC had strong claims to at least some parts of their traditional territory. The Court also found that under the system in place, at the time of trial, certain (class one) exploratory work could be carried out by a claim holder without consultation and that such work could adversely affect claimed Aboriginal rights.

The Court found, in adopting the reasoning in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 ("Haida"), that while the Crown is entitled to manage resources it must do so only with due consideration of the effect on Aboriginal rights. The Crown must engage in bona fide consultation with a view to accommodating these rights before authorizing any activities that could adversely affect those interests. The nature of the consultation depends on the strength of the claim and the potential adverse effect on such rights.

The Court discussed the "open entry" mining regime in Yukon and also referenced that a claim holder could undertake a class one exploration program without any notice or permits. The Court did acknowledge the requirements of the Yukon Environmental and Socioeconomic Assessment Act, SC 2003, c 7 which requires consultation with First Nations. The Court found that, while class one exploration programs are less intensive and cover smaller areas than class two, three and four programs, they can still have a substantial impact on the land.

In addressing the question as to whether or not the recording of a claim triggered consultation, the Court accepted the reasoning in Rio Tinto Alcan Inc. v. Carriers Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650 ("Rio Tinto"). Rio Tinto, a Supreme Court of Canada decision, described the three elements of the test to determine whether the Crown's duty to consult is triggered as being:

  1. the Crown's knowledge of a potential Aboriginal claim;
  2. the contemplated Crown conduct; and
  3. the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

The Court found the first element of the test, knowledge of the Plaintiff's asserted Aboriginal claim, had been met because negotiations had been previously carried out affecting the claim. The Court addressed the issue that the Kaska, RRDC, did not need to establish Aboriginal rights and title within its traditional territory, since the Yukon Government did not dispute that "the claim [of RRDC] is a serious one with sufficient credibility to satisfy the first element of the Haida test".

The Court also found that the third element of the Haida test was met on the grounds that by transferring mineral rights to quartz mining claim holders the Crown engaged in conduct inconsistent with the recognition of Aboriginal title. In addition, the Court found that the right to carry out class one exploration activities could "seriously impede or prevent the enjoyment of some Aboriginal rights in more than a transient or trivial manner".

The Court determined that the real issue between the parties was whether or not the recording of a claim resulted in the obligation to consult since once a claim is staked the recorder must record the claim. The Yukon Government argued that there are no actions required on the part of the Government in granting a claim since the right to stake and record a claim did not require any approval from the Crown. The Yukon Government's position was that, as long as the statutory requirements are met, the granting of a mineral claim is automatic. The Court, however, found that under Section 15 of the Quartz Mining Act the Government had a broad discretion to create reserves and in the exercise of that discretion it could prevent staking within the reserved areas.

The Court also noted that the duty to consult exists to ensure that the Crown, in managing its resources, does not ignore Aboriginal claims. The Court stated "[s]tatutory 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". The Court found the failure of the Crown to provide any discretion in the recording of claims was the source of the problem. Even though the Court found that the doctrine of parliamentary sovereignty means that governments can pass legislation, there is still a duty to consult and governments cannot justify the absence of consultation in the carrying out of a statutory regime.

The Court addressed the issue of the need for confidentiality in acquiring mineral titles because of the "open entry" concept and that such a system has "considerable value in maintaining a viable mining industry and encouraging prospecting". However, the Court went on to say that "[i]t must, however, be modified in order for the Crown to act in accordance with its constitutional duties" and that mere notice cannot be the sole mechanism of consultation.

In addressing the question of what consultation is required, the Court found that it was not necessary or appropriate for the Court to specify precisely how the legislation can be brought into conformity with the requirements of Haida. The Court also made no finding as to whether or not the consultation that had previously occurred, which resulted in a staking prohibition of some 4,800 sq. kilometres of the lands claimed by RRDC, was consultation in accordance with the requirements of the Haida decision.

The Court found that "[t]he location and recording of a quartz mining claim, in and of itself, is not likely to interfere with claims to Aboriginal rights other than title. It is the actual performance of work on the land that may affect such claimed rights". The Court found specifically that the system in place did not address concerns relating to the effect of class one exploration activities on Aboriginal claims. The Court also found that the Crown must consult with RRDC regarding class one exploration activities that could have serious or long lasting adverse effects on Aboriginal rights. Notice of such proposed activities and an opportunity to consult must be given to First Nations.

The Court noted that Section 15 reserves may not be the ideal instrument for dealing with Aboriginal rights given the importance of the open entry system to the mining industry and the Yukon economy, however, it was "open to the Legislature to fashion a more flexible or precise statutory mechanism".

In the result, the Court made the following declarations:

  1. the Yukon Government has a duty to consult with RRDC on whether mineral rights on Crown lands within the Ross River Area might be made available to third parties; and
  2. the Yukon Government has a duty to notify, and where appropriate consult and accommodate, RRDC before allowing any mining exploration within the Ross River Area.

The Court suspended the declaration for a period of one year to allow the Government to address the problems.

In the course of issuing the above decision, the Court also addressed the issue as to whether or not the Yukon Chamber of Mines had a right to appear as an intervenor on the appeal. The Court found that in order to appear as an intervenor on an appeal it was necessary to apply for such status to the Court of Appeal rather than the Supreme Court. This issue arose in the context of the parties appearing to have assumed throughout the course of the proceedings that the right to be named as a party in an appeal, and to intervene at the appellate level, arose as a result of the party's intervenor status at the Supreme Court level.

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.