This decision may require Canadian jurisdictions to
rework their "free entry" mineral tenure systems.
In this case, the Yukon Court of Appeal (YKCA) considered the
application of the Crown's duty to consult to the location and
recording of mineral claims under the Quartz Mining Act
(Act).1 The Act establishes a "free entry"
mineral tenure system, under which the Mining Recorder must record
a mineral claim, without any exercise of discretion, upon receipt
of an application that complies with statutory requirements.
Recording a claim under the Act immediately confers on the claim
holder the ability to carry out a number of "Class 1"
exploration activities without obtaining any additional permits or
approvals and without providing any notice to the Crown or First
The lower court had held that the recording of a claim met the
three-part test set out by the Supreme Court of Canada to determine
whether the Crown's duty to consult is triggered: the Crown had
knowledge of the asserted Aboriginal claims; there was contemplated
Crown conduct in the form of the recording of a mineral claim and
there was a potential that the Crown's conduct may adversely
affect the asserted Aboriginal claims.
In reaching its conclusion, however, the lower court focused
primarily on the potential impact of the Class 1 exploration
activities on Ross River Dena Council's asserted Aboriginal
rights. In most Canadian jurisdictions, exploration activities
similar to the Class 1 activities under the Act are not
automatically granted upon the registration of a claim, but rather
require additional authorizations (giving the Crown the opportunity
to consult with Aboriginal groups prior to any significant
exploration activities being undertaken). Because of this, the
lower court decision did not necessarily stand for the general
proposition that the registration of a mineral claim triggers the
Crown's duty to consult. Rather, it was a specific decision
that was generally unique to Yukon as a result of the Act.
While the YKCA agreed with the lower court on most points, it
went further by finding that the granting of the mineral claim by
itself potentially impacts Aboriginal title. As a result, this
decision may have much broader implications for the system of free
entry in other Canadian jurisdictions. While acknowledging the
importance of free entry, the YKCA found that constitutional duties
must nevertheless be fulfilled: "I fully understand that the
open entry [free 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
While the activities sanctioned by the registration of a mining
claim under the Act may attract consultation, it is a significant
conclusion that the registration of a mining claim, by itself, can
impact a potential claim of Aboriginal title. This principle, if it
ultimately stands, would pose a serious challenge to the existing
mineral tenure regimes under most mining statutes in Canada.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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