Canadian Supreme Court rejects Yukon government's appeal over mining law

Date of publication: 
20 September 2013

In a victory for aboriginal land use rights, the Canadian Supreme Court has rejected an appeal by the Yukon government over a Yukon appeal court’s decision on land staking.

The Supreme Court said on Thursday it won’t challenge the ruling which requires miners to consult with a First Nation before claiming land in the Ross River Dena territory.

Under the Quartz Mining Act, mining companies had been going through the Yukon government when registering land claims in the Ross River area, Financial Post reports. The Ross River Dena Council would only be consulted once further exploration activities began.

In 2012, a Yukon appellate court ruled that the Act violated the Canadian constitution.

Thursday’s decision puts a temporary freeze on registering mining claims in the region, CBC News reports.

According to the Supreme Court’s website, the appeal was dismissed with costs.


Yukon to consult First Nation over mining claims

CBC News –

19 September 2013

The Yukon Government says it will comply with a court ruling ordering consultation with a First Nation before mining claims can be registered.

The Supreme Court of Canada dismissed the territory’s request to appeal a lower court decision that ordered government to change the way mining claims are registered on unsettled lands in Ross River Dena territory.

That ruling said the government must consult with the Ross River Dena before registering certain mineral claims on land that might affect the First Nation’s traditional rights.

Tom Ullyett of the Yukon Department of Justice said today’s Supreme Court of Canada ruling puts a temporary freeze on staking in the Ross River region.

“We are now getting tooled up to comply with that part of that decision and the government will not allow any staking in that area until the proper consultation has occurred with [Ross River Dena Council].”

The court ruling is of major concern for Yukon mining interests but the Yukon Chamber of Mines president said he believes the impasse is temporary and accommodations can be worked out with the Ross River Dena Council.


Supreme Court of Canada refuses leave to hear appeal of Yukon mining case

Drew Hasselback – Financial Post –

17 September 2013

The Supreme Court of Canada decides Thursday whether it will review a previous court ruling that put the Yukon Territory’s “free entry” staking system into legal limbo

The Supreme Court of Canada will not review a decision from the Yukon Court of Appeal that put the Territory’s “free entry” staking system into legal limbo.

In its usual Thursday morning press release, the Supreme Court said the Yukon government’s application for leave to appeal the appellate decision was “dismissed with costs.”

Last December, a three-judge panel of the Yukon appellate court unanimously held that the Territory’s hard rock mining legislation, the Quartz Mining Act, violated the Canadian constitution because it required mining claims to be recorded before any consultation over the legal status of the land had taken place between the crown and natives.

The Yukon government last March applied to the high court for permission to appeal the appellate court’s ruling.


Supreme Court of Canada’s ruling on Yukon mining to affect entire country

Ana Komnenic –

23 September 2013

Last week the Supreme Court of Canada decided that it would not challenge a Yukon court’s ruling that current land-staking practices defy the constitution.

The final legal decision has the industry riled up as it assesses what this means for the mining sector. By the looks of it, the ruling could change the way miners operate across Canada.

The Supreme Court last week rejected an appeal by the Yukon government over a lower-court’s ruling that Class 1 mineral exploration programs must “consult with” and “accommodate” the Ross River Dena Council – a First Nation – before allowing exploration to take place. The provision will amend the Territory’s Quartz and Placer mining acts.

Most Canadian jurisdictions operate under a “free entry” system whereby companies can acquire exploration rights by ground-staking – a process which requires no advance government approval.

Last year the Yukon Court of Appeal ruled that “free entry was incompatible with the Crown’s duty to consult aboriginal people before making rights to Crown land available,” explains Barry Barton, an internationally recognized expert in mining law and author of Canadian Law of Mining.

The Supreme Court’s decision has major implications for nearly all Canadian provinces and territories – they will have to amend their mining acts, Barton says.

The Western University law professor adds that it is “less clear” what kinds of changes are necessary because the court did not specify which amendments would be acceptable.

What we can be sure of is a busy period of policy making and law reform, under the shadow of the courts’ requirement that the law conform to constitutional requirements,” says Barton.

While companies and investors work on figuring out what this means for projects, a First Nation leader has come out to calm the storm, stating that he is “not against mining,” CBC news reports.

Ross River Dena Council chief Brian Ladue spoke with Yukon’s Chamber of Mines recently and clarified that the Council “would support responsible mining … where things are done properly.”

Ladue says First Nation should be involved from the beginning and reap the benefits of mineral extraction.

Without proper consultation of aboriginal groups, mining projects could trample on traditional land-use projects such as hunting and harvesting, Ladue explained. He argues that under the old laws, the Council had no idea what was happening on its land.


Dene Nation Supports Ross River Dena Council Court Case

Dene Nation press release

26 September 2013

On September 19, 2013 the Supreme Court of Canada dismissed an application for leave to appeal the Yukon Court of Appeal decision in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14. Yukon First Nations wanted a fair solution to resource development when it came to mining of natural resources on treaty lands or their territory. Yukon territorial government supported mining on disputed lands.

Dene National Chief Bill Erasmus said the ‘free-entry’ system that existed prior to this decision did not support and recognize Treaty and Aboriginal rights. Now appropriate legislation has to be amended to reflect the supreme court’s ruling. “Putting all arguments aside, the federal, provincial and territorial governments now have to sit with the First Nation governments to determine how mining will occur in their lands and territories. This is good business because everyone wins and especially local people who know what is best for them,” said Erasmus.

Erasmus continued by saying, “To that end, we lend our support to Yukon First Nations on their interest for fair dealings when it comes to industrial development in their territory. The Ross River Dena want to control what happens in their territory including what happens from resource development activities. The Supreme of Court of Canada supports this which allows for independent financing to go to the Yukon First Nations.”

The Supreme Court of Canada denied hearing an appeal from the Yukon territorial government on the mining of disputed lands. “First Nations in all of Canada will have substantial input straight up with anything that is taking place on their lands and territories which clarifies the rules,” said Erasmus. He commended the country’s highest court for its ruling to dismiss the Yukon Government’s request for an appeal and ordering them to implement a new arrangement over mining claim tenures.

Erasmus said that the ruling is a good one because the Supreme Court of Canada supports the full involvement of First Nations when it comes to development of their lands and territories. By doing so, it supports the Royal Proclamation of October 7, 1763 which is part of the Constitution of Canada. This means you don’t have to have a treaty in place to have your rights enacted,” concluded Erasmus.


For more information, contact:

Barret Lenoir
Dene Nation
(867) 873-4081