On September 19, 2013, the Supreme Court of Canada (SCC) denied an application for leave to appeal the decision of the Yukon Court of Appeal (YKCA) in Ross River Dena Council v. Government of Yukon (Ross River).1 The decision of the YKCA had confirmed that the Government of Yukon has a duty to consult with the Ross River Dena Council (RRDC) in connection with the recording of a mineral claim.
The SCC's decision to deny leave is significant as it leaves intact the analysis of the YKCA in applying the Crown's duty to consult to the "free entry" mineral staking system. In its reasons, the YKCA considered the potential impacts on RRDC-asserted Aboriginal rights from two distinct perspectives, namely (i) the potential impacts arising from certain "Class 1" exploration activities under the Yukon legislation (namely the Quartz Mining Act (Act) and the Quartz Mining Land Use Regulation) and (ii) the potential impacts (specifically on Aboriginal title) arising from the mere act of locating and recording a mineral claim. In both cases, the YKCA concluded that the Crown's duty to consult was triggered.
The YKCA's reasoning in respect of the Class 1 activities is generally specific to the Yukon, as the Act provides for an automatic right to carry out such activities upon recording a claim. In many Canadian jurisdictions, exploration activities similar to the Class 1 activities are not automatically granted upon the registration of a claim, but rather require obtaining additional authorizations or following certain Crown-supervised processes (thereby providing opportunities for the Crown to consult with Aboriginal groups prior to any significant activities being undertaken on the land).2
However, the YKCA's reasoning with respect to the potential impacts of staking on Aboriginal title is not necessarily limited to the Yukon and has potentially broader implications for free entry in other Canadian jurisdictions. Although the YKCA acknowledged the importance of free entry (which it called "open entry") to the exploration industry, it found that constitutional duties must nevertheless be fulfilled:
I fully understand that the open 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 duties.3
For a detailed overview of the YKCA's decision, refer to our legal update dated January 17, 2013.
While the activities sanctioned by the registration of a mining claim 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 is ultimately applied in other jurisdictions, would pose a serious challenge to the existing mineral tenure regimes under most mining statutes in Canada.
In our view, the registration of a mineral claim ought not to trigger the Crown's duty to consult if the relevant regulatory regime provides the opportunity for consultation to occur prior to the resource being developed. This view is consistent with the purposes of consultation articulated by the SCC in Haida Nation v. British Columbia (Minister of Forests):
The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.4 [Emphasis added]
While the regulation of exploration activities must be consistent with the constitutional protections afforded to Aboriginal and treaty rights in Canada, the granting of a mineral tenure, by itself, does not deprive Aboriginal claimants of the benefit of the resource. There must be an appropriate balance between the interests of Aboriginal peoples and the interests of the Crown in continuing to manage the resource for the benefit of all Canadians. Exploration is a highly competitive industry, and the free entry system is critical for maintaining a confidential, timely and efficient tenure-granting process.
Ultimately, the YKCA's decision in Ross River is limited to the Yukon, and caution should be exercised in applying its principles to other jurisdictions. In particular, the critical principles underlying the free entry system should not be unnecessarily eroded where other protections for Aboriginal and treaty rights already exist in the form of robust permitting processes for carrying out exploration and development activities on the land.
1 2012 YKCA 14
2 We note that this is the system in place in British Columbia and which was recently adopted in Ontario. In response to the YKCA's decision, Yukon sought public feedback on proposed amendments to the Act, as well as the Placer Mining Act by the end of July 2013. Amendments to the legislation must be in force by December 27, 2013, to meet the timeline imposed by the YKCA. Further information on the proposed amendments is available at www.emr.gov.yk.ca/mining/class_1_exploration_consultation.html.
3 Supra note 1 at para. 43
4 2004 SCC 73 at para. 27
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