At first glance, the result of the decision in Ross River Dena Council v Government of Yukon 2012 YKCA 14 [“Ross River”], this past December 2012, it is no longer possible for individuals eighteen years or older to enter onto land, and claim it as their own for the purposes of prospecting and mining. The Government of Yukon has appealed the decision to the Supreme Court of Canada for guidance on when, and to what extent, it is necessary to consult First Nations with respect to the application of the provincial Quartz Mining Act, SY 2003, c 14 (the “Act”).

Prior to the Court of Appeal decision, section 12 of the Act permitted any individual over the age of eighteen years to enter, locate, prospect, and mine for minerals on any vacant lands that were not subject to particular exemptions. Although the Act appears at first to give anyone over the age of eighteen first come, first serve access to mineral rights, sections 14 and 15 of the Act, along with associated acts and regulations, restrict the otherwise broad application of section 12. 

Specifically, section 14 excludes the following: any land that is occupied; under cultivation; may be used for water-power purposes; has a church or cemetery on it; and any land that is currently occupied for mining purposes. Section 15(2) excludes land that may be required for any public work or public purpose, and expressly excludes “the settlement of aboriginal land claims or any other public purpose”. 

Further, the Act operates in conjunction with the Quartz Mining Land Use Regulation OIC 2003/64, which provides that drilling and exploration programs designated as Class 1 are not required to give notice to the Government of Yukon or obtain permission from any person. The Act is also subject to the Yukon Environmental and Socio-Economic Assessment Act, SC 2003, c 7, which statutorily imposes the duty to consult with First Nations where there may be significant adverse environmental or socio-economic effects.

Ross River did not, as was suggested in a recent Financial Post article, throw the existing Yukon open-entry system into “legal limbo”. The real issue in Ross River was very specific: the question was whether Class 1 drilling and exploration programs were subject to the duty to consult, notwithstanding the legislative exemption. The Government of Yukon tried to argue that a registered claim under the Act does not constitute “contemplated Crown conduct”, therefore the second element of the test in Haida is not met, and as a result there is no duty to consult with respect to Class 1 mining projects.

The Government of Yukon’s appeal will not be a challenge to the established duty to consult, but will hopefully provide an opportunity for the Supreme Court of Canada to clarify whether legislation is included in “contemplated Crown conduct” under the Haida Test.