Court ruling: Consult with First Nation

A recent ruling by the Court of Appeal for Yukon could give an Aboriginal group in southeastern Yukon Territory a big say in who gets to explore for and mine minerals discovered on its traditional lands.

Unless overturned on appeal, the unanimous decision Dec. 27 by a three-judge panel comprised of British Columbia Court of Appeal judges, also could affect interaction between governments and First Nations throughout Canada, according to some observers.

In "Ross River Dena Council v. Government of Yukon," the Yukon appellate court ruled that the Government of Yukon's "open entry" registration system for quartz mineral claims is subject to the same obligation required of the Canadian federal government to consult with First Nations.

The Ross River Dena Council is one of three Yukon First Nations that have not entered into a final agreement with the governments of Yukon and Canada regarding their claims to Aboriginal title and rights. A member of the larger Kaska First Nation, the Ross River Dena Council's traditional area extends over 63,000 square kilometers (24,318 square miles), or roughly 13 percent of the Yukon.

The other Kaska group, the Liard First Nation, and the White River First Nation in southwestern Yukon also have not finalized agreements regarding claims to Aboriginal title and rights. Eleven other Yukon First Nations have final agreements with both the Yukon government and the Crown.

The lawsuit by the Ross River Dena challenges the free entry staking system in Yukon and the government's right to register mining claims without consulting affected First Nations. Under Yukon's Quartz Mining act, an individual can acquire mineral rights by physically staking a claim and then recording it with the Mining Recorder. Once recorded, a claim gives its owner rights to the minerals within its boundaries and the right to conduct certain exploration activities on the land without further authorization or notice to the Yukon government.

The Ross River Dena argued that the system allows activities that infringe on its Aboriginal rights and that principles adhered in a 2004 case, "Haida Nation v. British Columbia (Minister of Forests)," require the Yukon government to consult with the First Nation before recording quartz mining claims with the Ross River area.

The Yukon Territory Supreme Court agreed and ruled in 2011 that the Yukon government must give notice to the First Nation after new mining claims have been registered.

The Ross River Dena appealed, asserting that consultation must take place before mineral claims are recorded and that consultation requires more than mere notice of new claims.

The Yukon government argued that the granting of a mineral claim is automatic rather than discretionary when statutory requirements are met and thus, there is no duty to consult.

Moreover, mineral exploration activities in the Yukon, in general, are subject to assessment under the Yukon Environmental and Socio-Economic Assessment Act.

Section 74(2) of this regulation includes a requirement for consultation with First Nations.

Certain exploration activities, however, corresponding to those that fall under Class 1 exploration activities are exempted from assessment, meaning they can take place without notice to or consultation with the First Nations with claims that may be affected by them.

Class 1 activities include limited clearing of land, construction of lines, corridors and temporary trails, the use of explosives and the removal of subsurface rock and other specified activities.

A duty to consult

The Court of Appeal sided with the plaintiff, noting in its decision that "in order for the 'government' to meet its obligations it must develop a regime that provides for consultation commensurate with the nature and strength of the Aboriginal rights or title claim and with the extent to which proposed activities may interfere with claimed Aboriginal interests.

"The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nation can be reconciled with the Crown's right to manage resources. Statutory regimes that do not allow for consultation and fail to any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist," wrote the Hon. Justice J.A Groberman.

The appellate court did not specify when or how consultation should take place, and it allowed that in some instances, simply giving a First Nation notice would be sufficient to meet its obligation.

However, at least where Class 1 exploration activities will have serious or long-lasting adverse effects on claimed Aboriginal rights, the government must be in a position to engage in consultation with First Nations before the activities are allowed to take place, the court said.

"The honor of the Crown demands that it take into account Aboriginal claims before divesting itself of control over land. Far from being an answer to the plaintiff's claim in this case, the failure of the Crown to provide any discretion in the recording of mineral claims under the Quartz Mining Act regime can be said to be the source of the problem," Groberman concluded.

The appellate court also suspended its ruling for one year to allow the government time to consider statutory and regulatory changes to Yukon's mining regime which would provide for appropriate consultation.

Kaska reaction to ruling

Reacting to the court ruling, the Kaska First Nation Jan. 7 issued a statement in which it said the Kaska Nation has attempted to negotiate modern-day solutions to the realities of common law regarding aboriginal rights and title in Canada with the Yukon government.

"The issue of 'free entry' has been one that the Kaska have been asking YTG to negotiate with them on. YTG continue to refuse to negotiate, instead choosing a path of confrontation with First Nations on issues such as the Peel (Watershed) and changes to the Yukon Oil and Gas Act," wrote the First Nation.

"… We've never been really opposed to mining and mineral development in our territory. We just want to see things done properly in our territory, and we want to be a big part of the things that are happening. So, the Court of Appeal's decision really puts us in a good position. We feel that through this decision our concerns about the existing system will finally be addressed," said

Ross River Dena Council Chief Brian Ladue.

A Yukon government spokesman declined to comment Jan. 16, saying Yukon leaders have been reviewing the court's decision before determining a response. Parties have 60 calendar days from Dec. 27 before an appeal could be made.

Broader implications?

The Yukon Chamber of Mines, an intervener in the case, said it is considering the ramifications of the grounds for appeal of the appellate court decision.

"Recent inaccuracies and misunderstandings in the public have caused unnecessary alarm amongst some industry members and with Yukoners," the chamber said in a recent statement.

"While this ruling does contain some troubling implications, we are concerned that some of the complexities of this case have been misunderstood, and we caution those who leap to a broad interpretation," said Yukon Chamber of Mines President Rob McIntyre. "Regardless of the outcome of a possible appeal, it is critical to clarify, for the Yukon public, for our members working in the industry, and for investment and economic certainty in the territory, that this recent ruling only applies to the Traditional Territory of the Ross River Dena Council - the 'Ross River area," McIntyre said.

Kaska leaders disagreed.

Chief Liard McMillan of the Liard First Nation said, "While the Ross River Dena Council's case specifically addressed a portion of the Kaska traditional territory referred to as the "Ross River area," there can be no doubt whatsoever that the legal principles expressed by the Court of Appeal will apply to the remainder of the Kaska territory and, as well, to the traditional territory of the only other Yukon First Nation that has not entered into a land claim agreement - the White River First Nation."

Moreover, after reviewing the decision, we are of the view that aspects of the Court of Appeal's decision may well apply to the Yukon First Nations that have settled their land claims, and the entire Yukon, the Kaska leaders said.

"The court confirmed that Class 1 exploration activities may adversely affect the aboriginal rights of the Kaska and, therefore, the Kaska must be notified, consulted and perhaps accommodated with respect to those activities before they occur. Precisely the same argument could be made by the settled First Nations with respect to the adverse effects of Class 1 exploration activities on their treaty harvesting rights," they added.

The Chamber's McIntyre said, "On behalf of our members, we look forward to continuing the constructive dialogue we have initiated with Kaska Nation leadership, and to ensure that mineral exploration can continue undiminished within Kaska Nation Traditional Territory. We remain convinced that whatever the final outcome of this court action, people living in Kaska Territory will be able to enjoy the benefits of a thriving mining industry like other Yukoners."

On Jan. 7, Kaska Dena Council Chair George Miller also said, "While we are unable to agree with some of the public statements made last week by the Yukon Chamber of Mines, we want to take this opportunity to confirm that we agree with the Chamber's representatives that we need to work towards a common sense approach to meeting the requirements of the Court of Appeal's decision, and we look forward to engaging in that process to build upon the excellent meeting we had with them in December 2012."

Michael Kokiw, executive director of the Yukon Chamber of Mines, said the Court of Appeal's ruling like will affect all of the "unsettled" First Nations in that many previous negotiations were not done to the "Haida" standard.

Kokiw said the chamber sees its role as helping to ensure that all parties understand the implications of the decisions that they make. "We don't want to see Yukoners lose out on any future prosperity," he explained. "Our role is to see that all governments, whether federal, the territory or First Nations, understand that.

Kokiw said considerable speculation followed the court's ruling among industry and court observers that the decision may affect all of Canada's First Nations.

The issue does appear to be topical in other Canadian jurisdictions, especially as it relates to legislative schemes concerning mining, legal observers say. As recently as Nov. 1, 2012, Ontario amended its Mining Act to ensure that affected First Nations are consulted prior to substantive exploration work based on litigation in Ontario similar to the Ross River Dena case.

Legal observers say one of the most salient aspects of the decision is the court's consideration of the responsibility of the Legislature to address the duty to consult "when legislation is introduced" - a currently unresolved issue before the courts.

"The Ross River Dena case provides a timely discussion of this issue given that 2013 has started with the high-profile 'Idle No More' campaign by First Nations, ignited by their view that federal environmental legislation and changes to the Indian Act introduced in 2012 were done without consultation," members of Vancouver, B.C.-based Blake's Aboriginal Law Group wrote in a Jan. 17 article.

They say it remains to be seen whether the Yukon government will follow or expand on Ontario's example in a way that balances and protects the right of free entry for mineral tenures.

Further, the appellate court decision illuminates a grey area in the current case law by distinguishing between the "necessity" of consultation in relation to the introduction of legislation as opposed to consultation in relation to the implementation of legislation, the lawyers added.