Canada: Mineral Staking And The Duty To Consult

Last Updated: March 8 2013
Article by Shannon D. Webber

Most Read Contributor in Canada, July 2019

On Monday, February 25, 2013, the Government of the Yukon filed an application seeking leave to appeal to the Supreme Court of Canada the December 27, 2012 decision of the Yukon Court of Appeal in Ross River Dena Council v. Government of Yukon.

According to its press release of February 25, 2013, the Government of Yukon wants direction from Canada's highest court on when the duty to consult with First Nations arises in the context of mineral staking. Yukon's Premier Darrell Pasloski is quoted therein as indicating, "The Government of Yukon believes the Yukon Court of Appeal decision impacts nearly every jurisdiction in Canada and should be addressed by the Supreme Court of Canada".

A case summary of the Yukon Court of Appeal decision is included below.

Case Summary - Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, Yukon Court of Appeal (Groberman, Tysoe, and Hinkson JJ.A.) 27 December 2012

The Yukon Court of Appeal unanimously found that the Government of the Yukon has the duty to consult with an Aboriginal rights and title claimant before recording a mineral claim staked by a private prospector, and that mere notice to the Aboriginal claimant would not necessarily be sufficient to discharge that duty.

The Ross River Dena Council ("Ross River") sought a declaration that the Government of the Yukon had a duty to consult them with respect to the recording of mineral claims under the Quartz Mining Act, S.Y. 2003, c. 14. (the "Quartz Mining Act" or the "Act"). Under the Quartz Mining Act, an individual could acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder. Once a mining claim was recorded, the individual was entitled to the minerals within the claim and could conduct certain exploration activities on the land without further authorization or notice to the Government of the Yukon. This system is typically referred to as an "open entry" or "free entry" mineral tenure system.

In the Yukon Supreme Court, Veale J. found that the Government's practices in respect of new mineral claims under the Quartz Mining Act did not measure up to the consultation requirements enunciated in Haida Nation v. British Columbia, [2004] 3 S.C.R. 511; 2004 SCC 73. He considered, however, that those requirements would be satisfied by a scheme under which the Government of the Yukon provided monthly notice to Ross River of newly-recorded quartz mining claims within its traditional territory. (See Ross River Dena Council v. Government of the Yukon, 2011 YKSC 84) Ross River appealed the trial decision, asserting that consultation had to occur before the recording of mineral claims, and that consultation required more than mere notice of new claims.

Under the Quartz Mining Act's "open entry" system, any adult can stake a mineral claim of up to 51.65 acres on land administered by the Government of the Yukon, other than land that was already subject to a mineral claim or otherwise excluded under the legislation. The holder of a mineral claim is entitled to all minerals within the boundaries of the claim. Within 30 days of staking, the mineral claimant is required to "record" the claim with the Mining Recorder under s. 41 of the Act. The Mining Recorder does not possess any discretion to refuse to record a claim that complies with the statutory requirements. A recorded claim must be renewed annually by filing proof that work with a value of at least $100 has been done on the claim or by paying $100 to the Mining Recorder in lieu of doing work on the claim.

Under section 131 of the Act and the Quartz Mining Land Use Regulation, O.I.C. 2003/64, four classes of exploration programs on mineral claims are established. Mineral exploration activities under Classes 2, 3, and 4 are subject to assessment under the Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7. That statute includes a requirement for consultation with First Nations.

However, a Class 1 exploration program is not subject to such an assessment, nor to any relevant requirement that the mineral claim holder provide notice to the Government of the Yukon or its officials. There is also no requirement that the claim-holder provide notice to, or consult with, First Nations whose claims might be affected by the exploration activities.

The Court of Appeal observed that while Class 1 exploration programs were less intensive and covered smaller areas than Class 2, 3 and 4 programs, they could still have a substantial impact on the land. Such activities include – within prescribed limits – the clearing of land, the construction of lines, corridors and temporary trails, the use of explosives, and the removal of subsurface rock.

Relying upon Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 at para. 31, Mr Justice Groberman reviewed the three elements of the test for triggering the Crown's duty to consult.

There was no doubt that the Crown had knowledge of Ross River's claim. The Council of Yukon Indians, of which Ross River was a member, had negotiated an "Umbrella Agreement" on behalf of all 14 Yukon First Nations in 1993, setting out the basic principles for the settlement of all Aboriginal rights and title claims in the Territory. However, Ross River had subsequently failed to enter into a "Final Agreement" as contemplated in the Umbrella Agreement. Negotiations in that regard had broken off in 2002, and had not been resumed. In consequence, Ross River claimed Aboriginal title to an area of 63,110 sq. km. in southeastern Yukon, comprising approximately 13% of the Territory. During the course of the Umbrella Agreement negotiations, Ross River had identified lands within their claimed territory that they had anticipated securing as "Settlement Lands" in their final agreement. Those lands, comprising about 4800 sq. km. (8% of their total claimed area) were provided "interim protection" by the Government of the Yukon by being withdrawn from disposition by staking under the Quartz Mining Act.

8,633 active mineral claims subsisted in the remainder of the Ross River claim, covering approximately 14% of the claim area. The Government of the Yukon acknowledged that it was aware of Ross River's claim.

There was also no doubt that the recording of a staked mineral claim could adversely affect Ross River's claimed Aboriginal title. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 had made it clear that Aboriginal title included mineral rights, and by transferring mineral rights to private holders of staked claims, the Crown engaged in conduct that was "inconsistent with the recognition of Aboriginal title".

The Court also noted that the claimholder's right to engage in Class 1 exploration programs might adversely affect claimed Aboriginal rights. While such programs were limited, they might still "seriously impede or prevent the enjoyment of some Aboriginal rights in more than a transient or trivial manner".

The real issue was the question of whether the second element of the test, the existence of contemplated Crown conduct, was present in the recording of staked mineral claims. The Government of the Yukon argued that there was no Crown conduct because the statute did not give the Mining Recorder any discretion in respect of the recording of such claims. Because the granting of a mineral claim was automatic whenever the statutory requirements were met, the Crown had no duty to consult.

The Court of Appeal rejected this argument:

[37] 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.

[38] The honour of the Crown demands that it take into account Aboriginal claims before divesting itself of control over land. Far from being an answer to the plaintiff's claim in this case, the failure of the Crown to provide any discretion in the recording of mineral claims under the Quartz Mining Act regime can be said to be the source of the problem.

Accordingly, the Court of Appeal agreed with the trial judge below that the regime for the acquisition of a quartz mineral claim in the Yukon was deficient in failing to provide any mechanism for consultation with First Nations.

However, the Court of Appeal also rejected the Government of the Yukon's argument that the Quartz Mining Act didn't provide for any Crown discretion in the recording of claims. Under section 15 of the Act, the Government had a broad discretion to prohibit the location of quartz mining claims on particular lands, a discretion that the Court considered to be of considerable importance.

The Court of Appeal then considered the conclusion of the trial judge below that the Crown's duty to consult could be met by providing Ross River with a regular report detailing the claims that had been recorded each month. The trial judge had concluded that practical difficulties precluded consultation in advance of the recording of mineral claims. He had pointed out that prior consultation would prevent a mineral claimant from preserving confidentiality with respect to his or her mineral finds, and that consultation on each and every claim would create an administrative nightmare.

The Court of Appeal agreed that "the open entry system continued under the Quartz Mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting". It also acknowledged that "there is a long tradition of acquiring mineral claims by staking, and that the system is important both historically and economically to Yukon". Nevertheless it held that the Yukon's open-entry system had to be modified "in order for the Crown to act in accordance with its constitutional duties".

[44] 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.

The Court of Appeal observed that it was neither necessary nor appropriate for it to specify precisely how the Yukon regime could be brought into conformity with the flexible requirements of Haida. It added, however, that what was required was that consultations be meaningful, and that the system allow for accommodations where required, before claimed Aboriginal title or rights were adversely affected.

Mr. Justice Groberman went on to observe that, to some extent, consultation had already taken place. He noted that in 1988 during the negotiation of the Umbrella Agreement, the Crown had given interim protection to lands selected by Ross River to preserve them for potential inclusion in a settlement of claims by way of a treaty. He added that this interim protection covered 4800 sq. km. of Ross River's claim and included the prohibition of the recording of claims. However, it was due to expire on 31 March 2013.

The Court of Appeal was not prepared to express an opinion on whether the 1988 consultations had taken into account all of the appropriate considerations, given that it had occurred before the Haida framework had been formulated by the Supreme Court of Canada. However, it observed that consultation was an ongoing process, and further consultation could be anticipated in light of the looming expiration of the interim order.

The Court added that a "prohibition on locating claims in all or part of the claimed territory is the most obvious method (though, perhaps, not the only method) of accommodating Aboriginal title claims".

The Court recognized that the recording of claims, in and of itself, would not have any impact on asserted Aboriginal rights other than Aboriginal title. However, work subsequently performed on the staked claim by the mineral rights holder might affect other Aboriginal rights. Under the existing legislative scheme, work that fell within Classes 2, 3, or 4 of exploration activities were subject to governmental discretion and environmental review, thus providing opportunities for First Nations to engage in consultations. However, there was no such trigger to initiate consultations in connection with work that fell within Class 1. The Court asserted that:

[51] At least where Class 1 exploration activities will have serious or long-lasting adverse effects on claimed Aboriginal rights, the Crown must be in a position to engage in consultations with First Nations before the activities are allowed to take place. The affected First Nation must be provided with notice of the proposed activities and, where appropriate, an opportunity to consult prior to the activity taking place. The Crown must ensure that it maintains the ability to prevent or regulate activities where it is appropriate to do so.

Over the objections of the Government of the Yukon, the Court suggested that changes to the Quartz Mining Act might be necessary in order to insure that Aboriginal consultation occurred before any work was undertaken on a mineral claim. It noted that it was "possible for the government to meet the requirements of Haida under the current statute by engaging in consultations with a view to using s. 15 of the Quartz Mining Act to exclude from quartz mining claims all areas in which exploration activities would prejudice claimed Aboriginal rights" [Emphasis in original]. However, given the importance of the open entry system to the mining industry and to the Yukon economy, the Government of the Yukon might not see such a drastic approach as the optimum way to meet its consultation obligations. It was open to the Legislature to fashion a more flexible or precise statutory mechanism.

Accordingly, the Court allowed the appeal and granted the following 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.

At the suggestion of Ross River, the Court suspended these declarations for one year in order to permit the Government of the Yukon to make statutory and regulatory changes.

Although the Yukon Court of Appeal decision is not binding in any jurisdiction outside of the Yukon, the reasoning of this decision may well be persuasive to the courts of other provinces and territories, all of which to a greater or lesser extent rely upon an open entry system. This will be especially true in British Columbia, the jurisdiction in which the justices of the Yukon Court of Appeal perform their day jobs. The Government of Yukon has applied for leave to appeal this decision to the Supreme Court of Canada.

Decision available here and here.

About BLG

We wish to acknowledge the contribution of Kenneth Tyler to this publication.

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
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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