The Yukon's open entry mining system: declared a breach of the duty to consult with first nations.

• Author: Crosby, Tessa
• Position: Special Report: Resource Development Issues

Ross River Dena Council v Government of the Yukon 2012 YKCA 14

As Canada's MPs returned to the House of Commons this January they were greeted by jingle dancers on Parliament Hill. The gathering was one of more than 30 to be held across Canada as part of a national day of action in support of the Idle No More movement. Among other things, the movement seeks to raise awareness about aboriginal rights, treaty rights and self governance.

The equitable resolution of these issues is becoming more urgent as resource development becomes increasingly important to the Canadian economy. Much of the natural resources are found in treaded territory, traditional territory of First Nations, or areas of asserted but unproven land claims. In addition to having a strong moral and equitable interest in what development--if any--occurs on these lands, many First Nations (as inhabitants of remote regions) are uniquely placed to either support the development by providing much needed labour, or disrupt these activities through non-cooperation. Moral arguments aside, arriving at an equitable arrangement is increasingly just good business sense.

While many of these issues must be addressed politically, the courts are increasingly asked to determine the scope of aboriginal rights. In the context of resource development, much of the litigation centers on the duty to consult with First Nations. As established in Haida Nation v British Columbia 2004 SCC 73 ("Haida"), the duty requires the Crown to consult with First Nations where proposed Crown conduct may adversely affect claims to aboriginal interests in land.

In Ross River Dena Council v Government of the Yukon 2012 YKCA 14 the Yukon Court of Appeal ("YKCA") found that the Yukon Government had breached its duty to consult with Ross River Dena First Nation (RRDC). The breach occurred when the Government registered new mining claims under the Quartz Mining Act SY 2003 c 14. Registration has two effects which RRDC submits trigger the duty to consult:

(1) it transfers subsurface rights to claims holders, arguably threatening RRDC's asserted aboriginal title, and

(2) it entitles the claimholder to engage in class 1 exploration activities without further permission or notice, arguably threatening RRDC's surface aboriginal rights (of which hunting is the most important).

The YKCA upheld the lower court finding that the registration system does not meet the Haida consultation requirements. However, it disagreed with the lower court on the question of what regime would satisfy the duty; while the lower court held that the duty would be discharged if the Yukon Government were to notify RRDC of any newly recorded quartz mining claims, the YKCA held that mere notice is insufficient. It also accepted that the duty was triggered both by the threat posed to...