Canada: Ross River

The Supreme Court of Canada has decided not to hear an appeal from Yukon relating to consultation with Aboriginal groups and the "free entry" mining regime. The Yukon Court of Appeal, in a December 2012 decision, made a declaration that the Government of Yukon has a duty to notify and, where appropriate, consult with the Ross River Dena Council (RRDC) before allowing any mining exploration activities to take place on lands claimed by the RRDC. More significantly, the Court of Appeal declared that Yukon has a duty to consult with the RRDC in determining whether mineral rights on Crown lands within the RRDC land title claim are to be made available to third parties under the provisions of the Quartz Mining Act, S.Y. 2003, c. 14. This decision went beyond the trial judge's decision in November 2011 that Yukon could satisfy its duty to consult by providing monthly notice to RRDC of newly-recorded mining claims within its traditional territory.

The Court of Appeal decision fell short of the relief sought by the RRDC, which was a declaration that the Government of Yukon had a duty to consult them prior to the recording of mineral claims under the Quartz Mining Act. Further, the RRDC had sought a declaration that any future mineral claims recorded within the land claim area, if recorded without prior consultation, are "void". Nevertheless, the declaration made by the Yukon Court of Appeal has been interpreted by some observers as threatening the "free entry" mining regime, and that it will require the Crown to consult with Aboriginal groups before mining claims can be recorded.

The actual declaration made by the Yukon Court of Appeal did not go so far. The Court of Appeal did not declare that Yukon had a duty to consult prior to the recording of mineral claims. Instead, it ordered Yukon to consult with the RRDC concerning which lands would be made available for staking claims. The Court of Appeal agreed that the "free entry" system under the Quartz Mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting, and that there is a long tradition in Yukon of acquiring mineral claims by staking. The Court of Appeal held, however, that Yukon's mining regime had to be modified in order for the Crown to act in accordance with its constitutional duties. Statutory regimes that do not allow for consultation or for the accommodation of Aboriginal claims are "defective". The Court of Appeal held that a "more elaborate system must be engrafted onto the regime set out in the Quartz Mining Act" and allow for an appropriate level of consultation before Aboriginal claims are adversely affected. The Court would not specify precisely how Yukon's regime could be brought into conformity with the law of Aboriginal rights.

The Court of Appeal acknowledged that, to some extent, consultation had already taken place in the 1980s in the process leading up to lands claimed by the RRDC being protected from staking. RRDC is one of the Aboriginal groups in Yukon that has not entered into a Final Agreement with the Crown, and it continues to claim Aboriginal title to a large area of land in the southeastern region of the Territory. Yukon gave interim protection to the RRDC's unresolved claims by making nearly 4800 sq. km of land unavailable to staking under the Quartz Mining Act. The Court of Appeal was not prepared to conclude that such consultations, and the interim protection provided by Yukon in 1988, met the legal framework formulated by the Supreme Court of Canada. The Court of Appeal was also not prepared to dictate how the Government of Yukon could redesign the legislative regime for mining to accommodate Aboriginal claims, and left it to the Yukon Legislature to fashion a suitable response.

In February 2013, Yukon sought leave to appeal to the Supreme Court of Canada in relation to some aspects of the Court of Appeal decision. Yukon decided not to seek leave to appeal in regards to the Court's declaration concerning mining exploration activities. Previously, the holder of a mineral claim that fell within Class 1 of the Quartz Mining Land Use Regulation could undertake fairly significant mineral exploration activities without notice to either the government or Aboriginal groups. The Government of Yukon decided to amend its legislation in response to the Court of Appeal decision, and sought public comments.

The leave application filed by the Government of Yukon with the Supreme Court of Canada related only to the Court of Appeal's other declaration, and how the duty to consult can co-exist with a "free entry" system. Similar issues had been raised in a proceeding in Ontario (Wahgoshig First Nation v. Ontario), but that case came to an end in early 2013 after amendments to Ontario's Mining Act, R.S.O. 1990, c. M.14 came into force. The new legislation in Ontario created a process for lands of "Aboriginal cultural significance" being withdrawn from the category of lands open to staking. Due to the new legislative regime, the dispute in the Wahgoshig proceeding was rendered moot.

The dismissal of the Government of Yukon's leave application (and the discontinuance of the Ontario proceeding) will not allow for these issues to be clarified at this time. Since the "free entry" regime is found across Canada, it is likely that these issues will come before the courts again. Yukon's Legislature now has the task of redesigning its mining regime in accordance with the Court of Appeal's decision.

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