Yukon Court of Appeal Finds Duty to Consult Exists When Recording Mineral Claims 


January 2013

Aboriginal and First Nations Law Bulletin

On December 27, 2012, the Yukon Court of Appeal ruled in Ross River Dena Council v Government of Yukon, 2012 YKCA 14 that the Yukon government has a duty to consult with First Nations when recording mineral claims in the First Nation's asserted traditional territory (i.e. non-treaty area). This decision is significant because the Court found the duty to consult exists even though the relevant legislation gave essentially no discretion to the officials recording the claims.

summary of the case

The Yukon Quartz Mining Act allows an individual to obtain mineral rights by physically staking a claim and subsequently recording the claim with the Yukon Mining Recorder. The Mining Recorder has no discretion to refuse to record a claim if it complies with the technical mineral claim staking requirements of the act. Once a mineral claim is recorded, the Quartz Mining Act allows for certain "Class 1" exploration activities to be carried out on the land without further permits or authorizations, and without further notice to the Yukon government or any aboriginal consultation. The Ross River Dena Council sought declarations that the Yukon government has a duty to consult in these circumstances with respect to the recording of mineral claims within its asserted territory and that this duty was breached by a lack of consultation prior to recording such claims.

In the decision, the Court considered the application of the principles from Haida Nation v British Columbia (Minister of Forests) ("Haida")1 in this context. The Court found that it was clear the Yukon government had notice of the aboriginal rights and title claims (the first part of the Haida inquiry); however, the Court's analysis of the next two questions was not quite as simple.

1.    Was there "contemplated Crown conduct"?

The Court found that contemplated Crown conduct was present, even though the recording of the mineral claim is mandatory under the Quartz Mining Act with very limited exceptions. The Court noted that discretion in recording mineral claims was not entirely absent in the Quartz Mining Act, citing the prohibition of recording mineral claims in particular areas, but found that in any event the lack of discretion in the recording of claims does not absolve the Crown of the duty to consult.

2.    Were asserted aboriginal rights and title affected by such conduct?

The Court found that asserted aboriginal rights and title were affected by the recording of mineral claims. More specifically, the Court noted the impact of such recording on asserted aboriginal title, stating in paragraph 32: 

There can also be no doubt that the third element of the Haida test is made out where the Crown registers a quartz mining claim within the plaintiff's claimed territory. Aboriginal title includes mineral rights (see Delgamuukw v British Columbia, [1997] 3 SCR 1010, at para. 122). In transferring mineral rights to quartz mining claim holders, the Crown engages in conduct that is inconsistent with the recognition of Aboriginal title.2

The Court also noted that the recording provides authorization – without further government approvals or aboriginal consultation – for Class 1 exploration activities, which have the potential to physically affect the exercise of asserted aboriginal rights or title. These authorized activities included, among other things, tree clearing and the use of explosives.

Having found a duty to consult to exist, the Court then went on to find that the provision of notice to the Ross River Dena Council did not amount to adequate consultation in this case. It noted that where Class 1 exploration activities will have serious effects on asserted aboriginal rights, consultation should occur before such activities take place. The Court stated at paragraph 37:

Statutory 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.

The decision of the Court was suspended for one year to allow the Yukon government to make legislative changes to provide for aboriginal consultation.

questions that arise

1.    Does the ruling call into question BC mineral tenure legislation?

Much of the province of BC is subject to asserted but unproven aboriginal rights and title, as was the case with the area of the Yukon at issue in this case. This raises the question of whether the duty to consult would be found to exist in relation to the recording of mineral claims in such areas under the BC Mineral Tenure Act, particularly since the Yukon Court of Appeal is comprised of justices of the BC Court of Appeal.

It is however not clear to what extent this decision has relevance to the BC Mineral Tenure Act, as much of the Court's decision seems to be premised on the fact that recording a mineral claim in the Yukon under the Quartz Mining Act resulted in authorization to undertake certain exploration activities without any further permits or consultation, which is not presently the case in BC. The Court stated at paragraph 51:

At least where Class 1 exploration activities will have serious or long-lasting adverse effects on claimed Aboriginal rights, the Crown must be in a position to engage in consultations with First Nations before the activities are allowed to take place. (emphasis added)

In BC, no such activities are authorized by the recording of a claim alone.

However, as noted above, the Court also seemed to say in paragraph 32 that the mere fact that a right to the minerals is acquired upon staking gives rise to a duty to consult, based on impacts to asserted aboriginal title. It is not readily apparent whether or how a Court might distinguish the Yukon legislation from that of BC on this basis, as both convey rights to minerals, albeit with somewhat different language. This is perhaps the least developed aspect of the Court's reasons, as the Court does not discuss in any detail the true "impact" on aboriginal title of gaining a right to minerals when that right is in fact so heavily dependent upon numerous and often very challenging further approvals that are the subject of extensive aboriginal consultation. For all the "rights" to minerals acquired in BC each year through staking, exceedingly few ever result in a mine being developed and minerals being extracted.

2.    Will the ruling affect the government of BC's recent initiative for de-permitting low-risk exploration activity?

Amendments were made to the BC Mines Act in late 2011 to allow the government to pass regulations to exempt low-risk exploration activities from permitting requirements. In November 2012, the Ministry of Energy, Mines and Natural Gas released a discussion paper outlining the proposed exempt activities and, in a related Q&A document, noted that aboriginal consultation with respect to the exempt activities would consist of notice.3 It will be interesting to see whether and how this case affects the government's ultimate decision as to which if any low-risk activities it will exempt. The period for comments on the discussion paper closed on December 25, 2012.

3.    What does this case mean for the larger question of whether a duty to consult exists in relation to legislative acts?

In a single, short paragraph that is certain to become to focus of much academic debate, the Court addressed what is one of the most significant outstanding questions in the law of aboriginal consultation. It said:

I acknowledge that in Rio Tinto the Supreme Court of Canada left open the question of whether "government conduct" includes legislative action. I read that reservation narrowly, however. It may be that the doctrine of parliamentary sovereignty precludes the imposition of a requirement that governments consult with First Nations before introducing legislation (see Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at 563). Such a limitation on the duty to consult would, however, only apply to the introduction of the legislation itself, and could not justify the absence of consultation in the carrying out of a statutory regime.

In any case, the decision as a whole, and this paragraph in particular, raises a number of further and subsidiary questions that are – sooner or later – going to require attention from the Supreme Court of Canada. They include, but are not limited to, the following:

  • If legislation would affect asserted aboriginal rights and title, is it now always necessary for that legislation to include some discretionary decision-making and allow for related aboriginal consultation before the legislation can be in keeping with section 35 of the Constitution Act, 1982?

  • If the legislation does not provide for such discretion, can the duty to consult be met through the development of the legislation itself?4

  • How would the doctrine of parliamentary sovereignty apply in the face of competing interests that are protected by section 35 of the Constitution Act, 1982 and thus of a higher status than traditional common law concepts?

    These are all very interesting and important questions that are raised but not answered by the decision. It will therefore be interesting to see if leave to the Supreme Court of Canada is sought and, if so, whether it is granted.

    by Robin Junger and Brittnee Russell5

    1 2004 SCC 73

    2 In Delgamuukw at paras. 125-132, the Supreme Court of Canada also discussed certain inherent limits on the use to which aboriginal title lands could be put by aboriginal groups, so it is not inevitable that a finding of aboriginal title would allow an aboriginal group to mine minerals below title lands. This was not however at issue in this case.

    3 See http://www.newsroom.gov.bc.ca/2012/11/proposed-activities-for-mines-act-permitting-exemption.html. The Q&A document is available here.

    The Court of Appeal seems to suggest that is the case, as it comments in some detail on the process that preceded the development of the Yukon legislation in question here, though it did not find that alone was sufficient to meet the duty to consult in this case.

    5 Robin Junger is a partner in McMillan's Business Law group. He is National Co-Chair of McMillan's Aboriginal and Environmental Law Groups, and Co-Chair of the Oil and Gas (BC) group. Brittnee Russell is an associate in McMillan's Business Law group.

    cautionary note

    The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

    © McMillan LLP 2013