At first glance, the result of the decision in Ross River Dena
Council v Government of Yukon 2012 YKCA 14 ["Ross
River"], this past December 2012, it is no longer possible for
individuals eighteen years or older to enter onto land, and claim
it as their own for the purposes of prospecting and mining. The
Government of Yukon has appealed the decision to the Supreme Court
of Canada for guidance on when, and to what extent, it is necessary
to consult First Nations with respect to the application of the
provincial Quartz Mining Act, SY 2003, c 14 (the
Prior to the Court of Appeal decision, section 12 of the Act
permitted any individual over the age of eighteen years to enter,
locate, prospect, and mine for minerals on any vacant lands that
were not subject to particular exemptions. Although the Act appears
at first to give anyone over the age of eighteen first come, first
serve access to mineral rights, sections 14 and 15 of the Act,
along with associated acts and regulations, restrict the otherwise
broad application of section 12.
Specifically, section 14 excludes the following: any land that
is occupied; under cultivation; may be used for water-power
purposes; has a church or cemetery on it; and any land that is
currently occupied for mining purposes. Section 15(2) excludes land
that may be required for any public work or public purpose, and
expressly excludes "the settlement of aboriginal land claims
or any other public purpose".
Further, the Act operates in conjunction with the Quartz Mining
Land Use Regulation OIC 2003/64, which provides that drilling and
exploration programs designated as Class 1 are not required to give
notice to the Government of Yukon or obtain permission from any
person. The Act is also subject to the Yukon Environmental and
Socio-Economic Assessment Act, SC 2003, c 7, which statutorily
imposes the duty to consult with First Nations where there may be
significant adverse environmental or socio-economic
Ross River did not, as was suggested in a recent Financial Post
article, throw the existing Yukon open-entry system into
"legal limbo". The real issue in Ross River was very
specific: the question was whether Class 1 drilling and exploration
programs were subject to the duty to consult, notwithstanding the
legislative exemption. The Government of Yukon tried to argue that
a registered claim under the Act does not constitute
"contemplated Crown conduct", therefore the second
element of the test in Haida is not met, and as a result there is
no duty to consult with respect to Class 1 mining projects.
The Government of Yukon's appeal will not be a challenge to
the established duty to consult, but will hopefully provide an
opportunity for the Supreme Court of Canada to clarify whether
legislation is included in "contemplated Crown conduct"
under the Haida Test. As
Davis LLP has a strong aboriginal and
mining law practice, we will be monitoring whether the
Government of Yukon obtains leave from the Supreme Court of
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