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News archive for September 19, 2013

‘We now have a clear direction from the Supreme Court’

The Supreme Court of Canada has denied the Yukon government’s request to hear an appeal involving how mineral claims are staked inside the traditional territory of the Ross River Dena Council.

By Chuck Tobin on September 19, 2013 at 3:02 pm

The Supreme Court of Canada has denied the Yukon government’s request to hear an appeal involving how mineral claims are staked inside the traditional territory of the Ross River Dena Council.

The decision was handed down by the country’s highest court at 6:45 a.m. – 9:45 Ottawa time – today.

As is standard practice, the Supreme Court did not offer any reasons for its decision.

The government’s request was reviewed by three judges of the high court, including Chief Justice Beverley McLachlin, who is coincidentally in Whitehorse this week for a gathering of senior judges from across Canada.

Representatives of all parties – the territorial government, the Ross River Dena Council and the Yukon Chamber of Mines – acknowledged this morning there is a now a great deal of work ahead.

There was acknowledgment that the decision last Dec. 27 by the Yukon Court of Appeal now stands, and could have implications beyond Ross River, beyond the Yukon.

Chamber president Rob McIntyre said in an interview this morning the Yukon has gone through a significant transformation in the last 25 years, both socially and politically.

It’s gone through that transformation without any negative effects on the economy, he said.

It’s in the interest of all parties – Ross River included – to see that they work their way through the landscape as it now sits following the Supreme Court of Canada decision, he said.

“If done carefully, we should be able to meet our test without any negative impacts to our economy,” McIntyre said. “However, we caution people if not done carefully, there could be significant impact.”

Currently, anyone at any time can stake a mineral claim anywhere in the Yukon and have it recorded by the mining recorder, without telling anyone.

The owner of a mineral claim is allowed under the Quartz Mining Act to do a certain amount of work without telling anyone, including the removal of trees, clearing trails, using explosives, or removing up to 500 tonnes of dirt.

The Ross River Dena Council launched a legal action in 2010. It arguing before anybody stakes a claims in its traditional territory, he or she needs to consult with the First Nation.

Yukon Supreme Court Justice Ron Veale ruled in November 2011 there was a duty to consult with the First Nation.

Veale, however, went on to say the duty to consult could be fulfilled by notifying the First Nation that a claim had been staked in its traditional territory after the claim has been recorded by the mining recorder.

The Dena Council appealed Veale’s decision, as did the Yukon government.

Ross River argued the judge made a mistake in finding the duty to consult could be fulfilled after a claim was staked and recorded.

The Yukon government appealed Veale’s finding that a duty to consult even existed.

In their decision handed down last Christmas, the three judges of the Yukon Court of Appeal upheld the ruling that a duty consult did indeed exist. They disagreed with Veale’s finding that the duty could be fulfilled after a claim was staked.

The Court of Appeal said the Ross River Dena Council must be consulted before any claims are staked inside its traditional territory.

It gave the government one year to comply with the order.

The Court of Appeal noted that the owner of a mineral claim was automatically entitled to carry out some work, work that could potentially affect the aboriginal rights and title of the Ross River Dena Council.

In seeking permission to have an appeal heard by the nation’s highest court, both the government and the chamber of mines argued if the Court of Appeal decision was allowed to stand, it could turn the mining and exploration industry upside down.

It’s of fundamental importance that prospectors or exploration companies be allowed to stake ground before telling anybody where they’re planning to invest their money looking for new mineral deposits, they argued.

The government went on to argue in its request that the Court of Appeal decision could even impact how the government goes about developing and passing new legislation.

Ross River lawyer Stephen Walsh argued in his submission to the top court that the government was making a big hullabaloo over nothing, and should not be given an opportunity to be heard by the Supreme Court.

Just as he emphasized to the Court of Appeal, Walsh pointed out in his submission to the highest court that a remedy to fulfill the duty to consult with Ross River already exists in the Quartz Mining Act.

He said the government can use section 15 of the act to withdraw the Ross River area from staking while it negotiates with the First Nation to identify which lands should and should not be available for mineral staking.

The government used section 15 to withdraw all of the Peel River watershed from mineral staking while it continues work on a land use plan for the 68,000 square kilometres, Walsh pointed out again this morning.

He said the Ross River area is 63,000 square kilometres, or virtually the same size as the Peel watershed.

The government has 3 1/2 months to work out an arrangement with Ross River, he said.

Walsh said he suspects with the Court of Appeal decision now representing the law of the land, there could be implications for the only other two Yukon First Nations without aboriginal land claim settlements – the Liard First Nation of Watson Lake and the White River First Nation.

Following the Court of Appeal decision last December, Walsh expressed doubt that the Supreme Court of Canada would agree to hear an appeal.

He said back then the highest court in the country had already made some significant rulings on the question surrounding the duty to consult First Nations, and how far the duty goes.

Today, he indicated he was not surprised by this morning’s ruling.

Walsh noted the Supreme Court of Canada denies about 90 per cent of the requests it receives to hear an appeal.

In the last nine years, he added, the senior court has ruled on at least five cases around the duty to consult, including a case involving the Little Salmon-Carmacks First Nation.

“You combine those facts, and it is clear in my view, it was a long shot on the part of the territorial government,” he said.

The mines chamber’s president said legal opinions he’s received indicates the Dec. 27 decision by the Court of Appeal as it now stands could reach beyond the traditional territories of the three First Nations without aboriginal land claim settlements.

McIntyre said there could be implications for the 11 Yukon First Nations which have signed settlements, if they choose to raise the question.

It’s his understanding there could be implications in B.C., the Northwest Territories, Quebec and beyond, he said.

Yukon government lawyer Tom Ullyett said today the potential for widespread impact from of the December 2012 Court of Appeal decision was one of key reasons why the government asked to be heard by the Supreme Court of Canada.

The assistant deputy minister of Justice said the very minute the decision was released electronically at 6:45 a.m., his BlackBerry started buzzing and the exchange of emails continued through the early part of the morning.

Ullyett said the government thought the issue at hand was of national importance, but the Supreme Court of Canada obviously felt otherwise.

The court announced earlier this week it would be delivering its decision this morning, he pointed out. Officials with Department of Energy, Mines and Resources, the Executive Council Office and the Department of Justice were waiting for it, he said.

“So yes, we hit the ground running, and we now have a very clear direction from the Supreme Court of Canada.”

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