The Yukon government is hoping that the Supreme Court of Canada will hear its appeal of a court ruling that called into question the way mineral claims are staked on the traditional lands of unsigned First Nations.
Last December the Yukon Court of Appeal ruled that the government had a duty to consult with First Nations before a mineral claim was staked.
Under the current legislation, anyone can stake a claim in the territory. And once the claim is registered with the mining recorder, the holder of the claim has the right to carry out Class 1 exploration work. That includes things like clearing trees, building trails, digging up rock and even the use of explosives.
The Ross River Dena Council brought a suit against the Yukon government in 2011, arguing that the status quo was a violation of its aboriginal rights.
It lost the case initially but won on appeal.
The Yukon Court of Appeal found that “(w)hile Class 1 exploration programs are limited, they may still seriously impede or prevent the enjoyment of some aboriginal rights in more than a transient or trivial manner.”
In making its ruling the three-judge appeals court made two declarations.
The first was that the territory has a duty to consult with unsigned First Nations about where staking can take place within their traditional territories. The second was that the government has an obligation to notify – and where appropriate – consult and accommodate First Nations before any mining or exploration activities can take place.
The court suspended its declarations for a year, giving the territory time to make the necessary legislative changes.
The Yukon government has accepted the requirement to consult with First Nations before exploration activity can take place and is working with both industry and First Nations governments on how to incorporate consultation into the Quartz Mining Act, said Premier Darrell Pasloski.
But it has applied for leave to appeal the first declaration with the Supreme Court of Canada.
“We want to know exactly what the rules are around consultation, around the whole issue of mineral staking,” said Pasloski. “This is a significant issue and not only affects the Yukon but there’s interest in almost all the jurisdictions across the country on this.”
Getting the high court to hear a case is a two-part process.
First the government has to ask the court’s permission by filing a leave to appeal, which it did this week.
Only if the court accepts that application will the case move forward.
The vast majority of those cases never make it past that stage, but Ken Coates, a Canadian historian who studies the history of the North and First Nations rights, said he thinks this case has a fairly good chance of being heard by the court.
“I’m not surprised that the Yukon government is taking it to court and I wouldn’t be surprised if the Supreme Court decided to hear it as well,” he said. “If they don’t, then it kind of stands as law rather untested in the sense that it hasn’t gone to the Supreme Court and so there would be a question in other parts of the country whether that same ruling would apply.”
Most of the Yukon’s First Nations are covered by modern treaties, but there are still two, the Kaska – which includes both the Ross River Dena and Liard First Nation – and the White River First Nation, that don’t have an agreement with the territorial government.
All told, their unsettled land claims span 122,230 square kilometres of the territory.
The Yukon is hardly the only jurisdiction where there are unsettled First Nations land claims.
Many parts of the country have either no treaties – as is the case in most of B.C.- or very old treaties which don’t deal with issues like land surrender, said Coates.
“Northern Saskatchewan, which is the most active mining jurisdiction in the country right now, has old treaties rather than new ones – 1870s up to the early part of the 20th century,” he said.
There is nothing in those older treaties that deal with the government’s duty to consult with First Nations, because at the time that legal obligation didn’t exist and no one was thinking about large-scale resource development, said Coates.
But they are now.
“There’s no question that the rest of the country will watch this very closely to see what happens with this court case.”
The Supreme Court isn’t expected to make a ruling on the government’s application for several months.
If the court allows it to move forward, the entire process is likely to take 18 months to two years before it is resolved, said Thomas Ullyett, the assistant deputy minister for the Department of Justice.
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