The Supreme Court of Canada dismissed a leave application filed by the Government of Yukon in the Ross River case. This proceeding involves whether Yukon has the duty to consult with an Aboriginal rights and title claimant before recording a mineral claim staked by a private prospector, and whether mere notice to the Aboriginal claimant would be sufficient to discharge that duty.

The decision of the Yukon Court of Appeal in December (2012 YKCA 14) was summarized in our e-Newsletter of 18 January 2013. A subsequent costs award (2013 YKCA 7) was noted in our e-Newsletter of 15 July 2013.

A summary of the case found on the SCC’s website was as follows:

Constitutional law ― Aboriginal rights ― Crown ― Duty to consult ― First Nation applying for declaration that Government of Yukon has a duty to consult prior to recording grant of quartz mineral claims within lands comprising Ross River Area ― Lower courts agreeing on Crown’s duty to consult but differing on what satisfies duty to consult ― Whether legislative action constitutes “contemplated Crown conduct” for purposes of Haida test ― Whether legislation can be declared defective and not allowed to subsist without consideration of whether it meets test for justifying an interference with an asserted aboriginal right ― What is the proper intersection point of the duty to consult with the free entry system ― Quartz Mining Act, S.Y. 2003, c. 14 ― Constitution Act, 1982, s. 35

The respondent, Ross River Dena Council applied for a declaration that the applicant, the Government of Yukon has a duty to consult prior to recording the grant of quartz mineral claims under the Quartz Mining Act, S.Y. 2003, c. 14 (“QMA”) within the lands comprising the Ross River Area.

The chambers judge held that the Government of Yukon had a duty to consult and found this duty would be satisfied if it provided notice of newly-recorded quartz mining claims within its traditional territory. The Court of Appeal allowed the appeal and agreed there was a duty to consult but did not agree that mere notice of the recording of a claim will always satisfy the Government of Yukon’s obligations.

The Supreme Court of Canada dismissed the leave application with costs.
http://scc.lexum.org/decisia-scc-csc/scc-csc/news/en/item/4385/index.do

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-640-4029
skerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law