Ross River Dena Council v. Yukon et al., (2013) 338 B.C.A.C. 245 (YukCA)

• Judge: Tysoe, Groberman and Hinkson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: December 27, 2012
• Jurisdiction: Yukon
• Citations: (2013), 338 B.C.A.C. 245 (YukCA);2013 YKCA 7

Ross River Dena Council v. Yukon (2013), 338 B.C.A.C. 245 (YukCA);

    577 W.A.C. 245

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. JN.001

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

(11-YU689; 2013 YKCA 7)

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

Yukon Court of Appeal

Tysoe, Groberman and Hinkson, JJ.A.

May 28, 2013.

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.(SC) 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, in a decision reported at 331 B.C.A.C. 234; 565 W.A.C. 234, 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." The plaintiff applied for costs.

The Yukon Court of Appeal ordered that the Government of Yukon pay the plaintiff's costs on Scale 1 in the Court of Appeal and on Scale B in the Yukon Supreme Court.

Practice - Topic 7020

Costs - Party and party costs - Entitlement to party and party costs - Successful party - General principles - See paragraphs 1 to 9.

Practice - Topic 7114

Costs - Party and party costs - Special orders - Increase in scale of costs - Novel or important issues - See paragraphs 1 to 9.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - See paragraphs 1 to 9.

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 reasons for judgment of the Court of Appeal were delivered by Groberman, J.A., at Vancouver, British Columbia, on December 27, 2012. The following supplementary reasons for judgment on costs were delivered on May 28, 2013.