Tr'ond, (2004) 193 B.C.A.C. 87 (YukCA)

• Judge: Ryan, Newbury and Hall, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: November 28, 2003
• Jurisdiction: Yukon
• Citations: (2004), 193 B.C.A.C. 87 (YukCA);2004 YKCA 2

Tr'ondëk Hwëch'in v. Can. (2004), 193 B.C.A.C. 87 (YukCA);

    316 W.A.C. 87

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. JA.072

Tr'ondëk Hwëch'in (appellant/petitioner/respondent on cross-appeal) v. Her Majesty The Queen in Right of Canada, Government of the Yukon and Canadian United Minerals Inc. (respondents/respondents/appellant on cross-appeal)

(YU494; 2004 YKCA 2)

Indexed As: Tr'ondëk Hwëch'in v. Canada et al.

Yukon Court of Appeal

Ryan, Newbury and Hall, JJ.A.

January 23, 2004.

Summary:

Canadian United Minerals Inc. (CUMI) acquired mineral claims located in a Terri­torial Park in the Yukon. About a year later, the park became part of territory covered by an Aboriginal Land Claims Settlement. Subsequently, CUMI applied for a five-year exploration permit. After a public hearing, the Chief, Mining Land Use and Reclama­tion, issued a permit authorizing certain exploration activities on the claims. The aboriginals applied for judicial review of the Chief's decision in Federal Court, but dis­continued the application. They then peti­tioned for declarations that the lands and the mining claims were subject to the Settlement and required to be managed according to the provisions of the Settlement. CUMI applied for contrary declarations.

The Yukon Supreme Court dismissed both applications, but granted two declaratory orders: (1) that CUMI possessed the right to operate and manage the claims under the Yukon Quartz Mining Act, and (2) that the authorities ought to exercise their discretion relative to the development of the mineral claims only after considering and observing the objectives in the Settlement. The abo­riginals appealed. CUMI cross-appealed.

The Yukon Court of Appeal dismissed both the appeal and cross-appeal. The court further set aside the two declarations granted at trial, as they were neither helpful nor necessary.

Indians, Inuit and Métis - Topic 5522

Lands - Land claim agreements - Inter­pretation - CUMI acquired mineral claims in a territorial park - The park became part of territory covered by an aboriginal land claims settlement - The aboriginals sought declarations that the lands and the mining claims were subject to the settle­ment and must be managed according to its provi­sions - CUMI sought contrary declarations - The Yukon Court of Appeal affirmed the dismissal of both applications - The trial judge correctly construed the settlement agreement, having regard to its plain word­ing - The agreement clearly concluded that the parties agreed that the establishment of the park would not nullify existing rights of owners of mineral claims that were previously validly located in the park area - The terms of the settlement clearly intended to "grandfather" CUMI's mineral rights - See paragraphs 3 to 19.

Practice - Topic 5653.1

Judgments and orders - Declaratory judg­ments - When available - Requirement of lis between parties - The Yukon Court of Appeal stated that a court may properly exercise its discretion to refuse a decla­ration where the relief sought was not related to an existing and defined lis - See paragraph 11.

Cases Noticed:

Eastmain Indian Band et al. v. Robinson et al., [1993] 1 F.C. 501; 147 N.R. 76; 99 D.L.R.(4th) 16; [1993] 3 C.N.L.R. 55 (F.C.A.), leave to appeal refused [1993] 3 S.C.R. vi; 163 N.R. 160; 104 D.L.R.(4th) vii; [1993] 4 C.N.L.R. vi, refd to. [para. 13].

St. Peter's Evangelical Lutheran Church of Ottawa (Trustees) v. Ottawa (City), [1982] 2 S.C.R. 616; 45 N.R. 271; 140 D.L.R.(3d) 577, refd to. [para. 16].

Counsel:

G.R. Thompson and S. Walsh, for the appellant;

F.L. Lamer and K.D. Parkkari, for the respondent, Canadian United Minerals Inc.;

P. Gawn and M. Leask, for the respondent, Government of the Yukon;

M. Radke, for the respondent, HMTQ in Right of Canada.

These appeals were heard before Ryan, Newbury and Hall, JJ.A., of the Yukon Court of Appeal, at Vancouver, British Columbia, on November 28, 2003. The decision of the court was delivered on Jan­uary 23, 2004, by Hall, J.A.