Duty to Consult applies to « free-entry » mining regime: Yukon Court of Appeal

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A recent decision by the Yukon Court of Appeal in Ross River Dena Council v. Government of Yukon 2012 YKCA 14 [“RRDC”], confirms that the Crown’s duty to consult applies to “free-entry” mining regimes. “Free-entry” systems are found in a number of legislative regimes, including Yukon’s Quartz Mining Act, S.Y. 2003, c. 14 and applicable regulations, and until recent amendments, Ontario’s Mining Act R.S.O. 1990, c. M-14, and applicable regulations. Under “free-entry” regimes prospectors can apply to the Crown to register mining claims on Crown land. Once mining claims are registered, the regime authorizes prospectors to subsequently carry out exploratory drilling on those claims. The regimes do not provide the Crown with any discretion in determining whether to register mining claims once a prospector has submitted an application, and no further Crown authorization is necessary in order for the prospector to carry out exploration activities. Examples of these exploration activities include the clearing trees and brush for access roads and drill-pads, drilling in to the ground and the removal of samples, the use of explosives, and others. The end result is that “free-entry” systems in theory would authorize prospectors to go out on land over which First Nations may have claimed title or right, or established rights and carry on potentially destructive activity. Such systems have given rise to tense conflicts between industry and First Nations (see Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 CanLII 26171 (ON SC), and Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 621).

Prior to RRDC, some had argued that the duty to consult as set out in Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73 did not apply in “free-entry” systems because there is no “decision” at issue – under free entry systems the Crown has no option other than to register the mining claims if they are properly staked and the paperwork properly filed.  But the Yukon Court of Appeal’s decision unequivocally holds that, notwithstanding an apparent lack of Crown discretion, the duty to consult does indeed apply to these regimes.

The appeal in RRDC was initiated by the Ross River Dena Council [“Council”]. The chambers judge in the court below had held that while the duty to consult applied to the registration of a mining claim, that duty could be fulfilled by the Crown giving notice after the registration of the mining claim. The Yukon Court of Appeal agreed with the chambers judge that the duty to consult applied to the registration of a mining claim but held that the chambers judge was incorrect in holding that notice after the registration of a mining claim was sufficient to fulfill the duty.

In its decision, the Yukon Court of Appeal found that there is some discretion on the part of the Crown in in the Yukon regime in the form of a provision which allows the Crown to withdraw certain lands from prospecting. The Court of Appeal held that because of this provision the legislation itself technically cannot be said to be inconsistent with the Haida principles in that the Crown could consult with an eye to removing certain lands from prospecting under the legislation. In any event, however, the Court of Appeal explicitly rejected the argument that the lack of discretion in the legislation means that the duty to consult does not apply to the “free-entry” system in the Yukon. The Court held that, “Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist”. This statement is arguably the most direct articulation to date from an appellate court of the principle that the constitutional duty to consult is “upstream” of, and takes precedence over, legislative regimes that might purport to limit the Crown’s capacity to consult (see Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 63, and West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, at para. 109). The Court of Appeal held that, rather than being something that saves the legislation from the application of the duty to consult, the lack of discretion in the legislation is the source of the problem.

On the question of the scope of consultation required in the registration of a mining claim, the Court of Appeal held that the chambers judge had erred in ruling that notice after the registration of a claim was sufficient. The Court of Appeal held that the regime is required to provide for meaningful consultation before claimed Aboriginal title and/or rights are affected. It held that, “At least where Class 1 exploration activities will have serious or long-lasting adverse effects on claimed Aboriginal rights, the Crown must be in a position to engage in consultations with First Nations before activities are allowed to take place. The affected First Nation must be provided with notice of the proposed activities and, where appropriate, an opportunity to consult prior to the activity taking place. The Crown must ensure that it maintains the ability to prevent or regulate activities where it is appropriate to do so.”

In the end, the Court of Appeal made the following declarations:

1.  The Government of Yukon has a duty to consult with the plaintiff in determining whether the mineral rights on Crown lands within lands comprising the Ross River Area are to be made available to third parties under the provisions of the QMA

2.  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

This case is of significance in that, barring appeal to the Supreme Court of Canada, it goes a great distance in putting to rest the notion that the Crown can escape its duty to consult First Nations by divesting itself of discretion. If the Crown creates a legal regime that affects and cannot adequately address (through consultation and accommodation) the claimed rights and/or title of First Nations, that regime is “defective and cannot subsist”. While not a surprising result, this case is a welcome addition to the jurisprudence clarifying the significance of the Honour of the Crown and the Crown’s duty to consult Aboriginal people. It is also a strong signal that “free-entry” mining regimes that fail to adequately acknowledge and address Aboriginal rights are a thing of the past.

By Michael McClurg