The legal challenge surrounding procedures for staking mineral claims in the Yukon is so significant the Supreme Court of Canada needs to hear an appeal, says the territorial government.

Documents filed Monday with the high court argue the case could have a significant impact for staking claims right across Canada.

It could also affect how the Yukon and other territories and provinces go about creating and passing legislation, the documents suggest.

"This is an issue with far-reaching implications for federal, provincial and territorial governments across Canada,” says the government's submission to the Supreme Court of Canada.

"For those jurisdictions that have built a mining industry on the foundation of the free entry system, the case is of even greater significance. Direction from this court is needed.”

Parties wanting the top court to hear an appeal must convince the court the matter is of significant public interest and national importance. The court agrees to hear approximately 10 per cent of the cases it's asked to.

The government's application insists the high court needs to hear an appeal of the Dec. 27, 2012 decision by the Yukon Court of Appeal regarding the duty to consult the Ross River Dena Council before staking claims inside its traditional territory.

At what point, for instance, is a provincial or territorial government obligated to consult First Nations when there is the possibility legislation will infringe on aboriginal rights, the Yukon asks.

The territory's Quartz Mining Act, the government points out, says the mining recorder is obligated to record a mineral claim under normal circumstances.

Since the mining recorder has no choice but to register the claim, then it must have been the creation of the legislation itself which failed in the duty to consult, the submission suggests.

Does that mean, the government asks, the duty to consult exists at the very beginning of the legislative process where legislation has the potential to infringe upon aboriginal rights?

What, then, of the provincial and territorial independence to make laws?

The government submits that by agreeing to take on the case, the Supreme Court of Canada can provide clarity on a number of outstanding issues.

The Ross River Dena Council sued the government for not fulfilling its duty to consult, arguing that recording a mineral claims prior to consulting the First Nation was an infringement of its aboriginal rights.

Yukon Supreme Court Justice Ron Veale rendered a split decision on the matter, which both parties appealed.

Veale found there was a duty to consult, but that duty could be fulfilled by notifying Ross River after the claim was filed.

The Yukon appealed the finding that the duty to consult did exist. And Ross River appealed the finding that the duty could be fulfilled after the claim was registered.

The Court of Appeal ruled Dec. 27 after hearing arguments in November that there was a duty to consult, and that duty could not be fulfilled after the claims were staked.

While Ross River is one of three Yukon First Nations without a land claim settlement, many have suggested the decision has implications far beyond the traditional territory of the Ross River Dena Council.

Whitehorse lawyer Stephen Walsh, who's representing Ross River, said the Yukon government is overselling the importance of the Court of Appeal decision to try to convince the high court to hear the appeal.

Ross River will argue in its submissions on the application that the case does not meet the test of national significance, he said.

The Yukon's Quartz Mining Act, Walsh pointed out, already provides the mechanism to fulfill the duty to consult First Nations before staking claims.

He said the Court of Appeal accepted his argument last spring that section 15 of the act gives the territorial cabinet the ability to withdraw areas from staking to address outstanding issues, including aboriginal rights.

Walsh emphasized it was section 15 that the cabinet used to withdraw mineral staking in the Peel River watershed while the land use planning continues.

The case could hardly be of national significance when the remedy to fix the problem identified by the Court of Appeal decision already exists right here at home, he suggested.

Walsh, however, does believe the Quartz Mining Act will have to be amended to conform to the second issue addressed in the Dec. 27 decision.

The Court of Appeal said:

• 1. when there is the potential for infringing on aboriginal rights and title, there is an obligation to consult before a mineral claim is registered;

• 2. before exploration work of any sort is allowed to proceed on the mineral claim, there is a duty to consult the First Nation.

Walsh said from what he understands, the Yukon government accepts the ruling that there is a requirement to consult before conducting any exploration work on a mineral claim.

Under the Quartz Mining Act currently, once a mineral claim is recorded, the owner of the claim can carry out a long list of work without obtaining permits or notifying anybody, including clearing land, digging holes, using explosives and setting up camp.

Walsh said he can't see how the government can ensure consultation will occur before any work proceeds without amending the act.

The Ross River Dena Council has 30 days from Monday to file its submission on the government's application.

Tom Ullyett, assistant deputy minister of Justice, explained at a briefing Monday that territorial officials should know in about six months whether the Supreme Court of Canada will agree to hear the appeal. If it does, it could be up to two years for the case to work through the process and a decision is rendered, he said.

The Court of Appeal suspended its Dec. 27 ruling for a year, to provide the Yukon with enough time to make the necessary adjustments. An extension to the suspension could be applied for if the high court agrees to hear the case, Ullyett said.

The government is also asking the nation's senior court to provide clarity regarding how the infringement of aboriginal rights can be justified, and how and when that justification should be tested in law.

Canada's top court, the Yukon points out, has already said legislation can infringe on aboriginal rights, if justification can be shown.

In the ground-breaking case of Ronald Sparrow in 1990 , the high court ruled provinces cannot impose restrictions on traditional subsistence hunting and fishing unless there is a sound reason.

The ruling, for example, established if there was a valid concern regarding the population status of a particularly species, restrictions on aboriginal hunting rights could be justified: no more hunting a particular caribou herd if the herd is classified as endangered.

The territorial government and the Yukon Chamber of Mines argued at the original trial and at the Court of Appeal hearing that the nature of staking mineral claims demanded confidentiality.

Having to tell anybody about your plans prior to securing ownership of the mineral claim is unworkable in the exploration business, they suggested.

The government points out in its submission to the top court that mining is central to the economy of Canada.

It is of particular importance to the North, as mining activity in all three territories is expected to grow, the Yukon points out.

The submission says the current "free entry” system of staking mineral claims is at the heart of Canada's mining industry.

"If the decision of the Court of Appeal is allowed to stand, the current system of free entry used in much of Canada is at risk,” says the government's submission.