On December 27, 2012, the Court of Appeal for Yukon released its decision in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14. This is an important judgment on the Crown's duty to consult in the context of mining claims. It may have implications for Aboriginal peoples and industry, not just in mining but in various resource sectors across Canada.
The Plaintiff, Ross River Dena Council, is one of three Yukon First Nations that have not yet entered into a final comprehensive land claims agreement with the governments of Yukon and Canada. It has made claims of Aboriginal title and rights on a large territory in the southeastern part of Yukon. The Plaintiff argued that the staking and recording of claims under the Quartz Mining Act (S.Y. 2003, c. 14) and the subsequent exploration activities carried out on such claims adversely affected its asserted Aboriginal title and rights and that it should therefore have been consulted before such claims are recorded.
The Quartz Mining Act sets out an "open entry" claim regime allowing any person to acquire mineral rights by physically staking a claim and having this claim recorded by the government's Mining Recorder. Under the Quartz Mining Act, these claims must be recorded provided that the necessary statutory requirements are met. Once this claim is laid and recorded, the individual may then undertake certain exploration activities without any authorization from or notice to the government or to anyone else, such as a First Nation.
At trial, the chambers judge of the Supreme Court of Yukon found that the mineral claim recording regime was in breach of the Yukon Government's duty to consult the Plaintiff. Nevertheless, he held that the duty to consult could be satisfied simply by notifying the Plaintiff after a claim had been recorded within its traditional territory.
The Plaintiff appealed this decision, asserting that notice did not constitute sufficient consultation and that such consultation must take place before the recording of the mineral claim.
The Court of Appeal considered three questions:
1. Does the recording of a mineral claim under the Quartz Mining Act trigger the Crown's duty to consult?
2. If so, is a simple notice to the affected Aboriginal community sufficient to satisfy the duty to consult?
3. If not, what form of consultation would be appropriate?
For the reasons detailed below, the Court of Appeal found that the Crown did have a duty to consult, that notice of a recorded claim was insufficient to satisfy this duty, and that, where appropriate, meaningful consultation must take place before any activities that could adversely affect the Plaintiff's asserted Aboriginal rights and title are undertaken.
3.1 Duty to Consult
Under the test developed by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, and then in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 S.C.R. 650, the Crown's duty to consult is triggered where three tests are met:
1. The Crown has knowledge, actual or constructive, of a potential Aboriginal claim or right;
2. The Crown contemplates conduct that could affect this claim or right; and
3. The contemplated conduct could adversely affect this claim or right.
In this case, there was little debate that the first and third tests had been met. The central issue was whether or not the recording of mineral claims constituted "contemplated Crown conduct." The Government of Yukon argued that the Quartz Mining Act provides the Crown with no discretion regarding whether or not a claim is recorded and, as such, it does not give rise to a duty to consult.
The Court of Appeal for Yukon did not accept this argument. The Court also noted that the statute does in fact provide the Government with a measure of discretion, since it empowers the Government to prohibit the location of quartz mining claims on certain lands. Furthermore, the Court held that the purpose of the Crown's duty to consult is to ensure the reconciliation of Aboriginal claims with the Crown's right to manage resources. As such, the Court stated that "[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." In such case, the statutory regime must be amended to provide for consultation with Aboriginal peoples in accordance with constitutional requirements.
As to the question of whether legislative action should be interpreted as government conduct subject to the duty to consult, the Court referred to the statement of the Supreme Court of Canada in Rio Tinto that the question remains open. It went on to state that, even assuming that any limitation applies on the duty to consult with regard to legislative action, assuming one exists, it would only apply to the introduction of the legislation, not to its implementation.
3.2 Adequacy of Notice
While the Court was conscious of the importance of the Quartz Mining Act's claim regime for the Yukon mining industry, it found that the potential impact of mining claims on Aboriginal title and rights was too great for simple notice to constitute adequate consultation. As such, it found that the regime set out in the Quartz Mining Act needed to be modified in order for an appropriate level of consultation to take place before any adverse effect on Aboriginal title or rights.
3.3 Form of Consultation
The Court noted that, in the present case, some consultation had previously taken place. During the process of treaty negotiation, an agreement had been concluded and continued by an Order in Council issued under the Quartz Mining Act that prohibited the staking of mining claims on certain lands within the Plaintiff's traditional territory. However, the Court noted that such protection had been originally granted in 1988 and found that, given the ongoing nature of consultation, it should not close the door to further consultation.
The Court held that, in transferring mineral rights to claim holders through the recording regime, the Crown is engaging in conduct that is inconsistent with the recognition of Aboriginal title. Furthermore, the Court found that exploration activities undertaken pursuant to the claim could seriously impede or prevent the enjoyment of Aboriginal rights. In such case, the Court held that consultations must take place before any such activities take place, and the Crown must have some measure of control over these activities, where appropriate. The means and process through which this result is to be achieved was left to the discretion of the Government of Yukon.
The Court declared that the Government of Yukon has a duty to:
a. Consult the Plaintiff before determining whether mineral rights on lands subject to the Plaintiff's asserted Aboriginal rights or claims are to be made available to third parties; and
b. Notify and, where appropriate, consult with and accommodate the Plaintiff before allowing exploration activities to take place on such lands.
These declarations were suspended for the period of one year to allow the appropriate amendments to be made to the relevant legislation.
On February 25, 2013, the Government of Yukon filed an application for leave to appeal of this judgment before the Supreme Court of Canada. Given the importance of this judgment, the possibility of such an appeal will be followed with keen interest.
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.