Ross River Dena Council v. Yukon et al., 2012 YKCA 14

• Judge: Tysoe, Groberman and Hinkson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: December 27, 2012
• Jurisdiction: Yukon
• Citations: 2012 YKCA 14;(2012), 331 B.C.A.C. 234 (YukCA)

Ross River Dena Council v. Yukon (2012), 331 B.C.A.C. 234 (YukCA);

    565 W.A.C. 234

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JA.006

Ross River Dena Council (appellant/plaintiff) v. Government of Yukon (respondent/defendant) and Yukon Chamber of Mines (intervenor/intervenor)

(11-YU689; 2012 YKCA 14)

Indexed As: Ross River Dena Council v. Yukon et al.

Yukon Court of Appeal

Tysoe, Groberman and Hinkson, JJ.A.

December 27, 2012.

Summary:

The plaintiff was one of three Yukon First Nations that had not entered into a final agreement with the governments of Yukon and of Canada with respect to their claims to Aboriginal title and rights. The plaintiff claimed a part of the Kaska traditional territory defined in the statement of claim as the "Ross River Area". Under the Quartz Mining Act an individual could acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder. Once a quartz mining claim was recorded, the claimant was entitled to the minerals within the claim and could conduct certain exploration activities on the land without further authorization and without notice to the Government of Yukon. The plaintiff asserted that the scheme that was in place allowed activities that were inimical to asserted Aboriginal title and rights and the Government of Yukon was required to consult with it before recording quartz mining claims within the Ross River Area.

The Yukon Supreme Court, in a decision reported at [2011] Yukon Cases Uned.(S.C.) 84, held that the government's practices in respect of new mineral claims under the Quartz Mining Act did not measure up to the Government of Yukon's consultation requirements. However, those requirements would be satisfied by a scheme under which the Government of Yukon provided notice to the plaintiff of newly-recorded quartz mining claims within its traditional territory. The plaintiff appealed.

The Yukon Court of Appeal allowed the appeal. The court issued the following declarations: "a) the Government of Yukon has a duty to consult with the plaintiff in determining whether mineral rights on Crown lands within lands compromising the Ross River Area are to be made available to third parties under the provisions of the Quartz Mining Act. b) the Government of Yukon has a duty to notify and, where appropriate, consult with and accommodate the plaintiff before allowing any mining exploration activities to take place within the Ross River Area, to the extent that those activities may prejudicially affect Aboriginal rights claimed by the plaintiff."

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiff was one of three Yukon First Nations that had not entered into a final agreement with the governments of Yukon and of Canada with respect to their claims to Aboriginal title and rights - The plaintiff claimed a part of the Kaska traditional territory defined in the statement of claim as the "Ross River Area" - Under the Quartz Mining Act an individual could acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder - Once a quartz mining claim was recorded, the claimant was entitled to the minerals within the claim and could conduct certain exploration activities on the land without further authorization and without notice to the Government of Yukon - The plaintiff asserted that the scheme that was in place allowed activities that were inimical to asserted Aboriginal title and rights and the Government of Yukon was required to consult with it before recording quartz mining claims within the Ross River Area - The Yukon Court of Appeal agreed with the trial judge that the government's practices in respect of new mineral claims under the Quartz Mining Act did not measure up to the Government's consultation requirements - See paragraphs 26 to 40.

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiff was one of three Yukon First Nations that had not entered into a final agreement with the governments of Yukon and of Canada with respect to their claims to Aboriginal title and rights - The plaintiff claimed a part of the Kaska traditional territory defined in the statement of claim as the "Ross River Area" - Under the Quartz Mining Act an individual could acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder - Once a quartz mining claim was recorded, the claimant was entitled to the minerals within the claim and could conduct certain exploration activities on the land without further authorization and without notice to the Government of Yukon - The plaintiff asserted that the scheme that was in place allowed activities that were inimical to asserted Aboriginal title and rights and the Government of Yukon was required to consult with it before recording quartz mining claims within the Ross River Area - The chambers judge held that the government's practices in respect of new mineral claims under the Quartz Mining Act did not measure up to the Government of Yukon's consultation requirements - However, those requirements would be satisfied by a scheme under which the Government of Yukon provided notice to the plaintiff of newly-recorded quartz mining claims within its traditional territory - The plaintiff appealed - The Yukon Court of Appeal allowed the appeal - The court did not agree with the chambers judge's view that mere notice to the plaintiff of the recording of a claim would always satisfy the Crown's consultation obligations - In order for the Crown to meet its obligations, it had to develop a regime that provided for consultation commensurate with the nature and strength of the Aboriginal rights or title claim and with the extent to which proposed activities might interfere with claimed Aboriginal interests - See paragraphs 41 to 57.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - The Yukon Court of Appeal discussed the process by which an intervenor could be given the right to make argument before the court - See paragraphs 8 to 16.

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, appld. [para. 4].

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [para. 26].

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 32].

Authors and Works Noticed:

Brinton, Holly A., Civil Appeal Handbook (2012), looseleaf, § 4.13 [para. 12].

British Columbia Court of Appeal, 2006 Annual Report, p. 14 [para. 12].

Counsel:

S.L. Walsh, for the appellant;

P. Gawn and L.A. Henderson, for the respondent;

R.A. Buchan and K.G. O'Callaghan, for the intervenor.

This appeal was heard at Whitehorse, Yukon, on June 5 and 6, 2012, by Tysoe, Groberman and Hinkson, JJ.A., of the Yukon Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Groberman, J.A., at Vancouver, British Columbia, on December 27, 2012.