Routine Permits Can Trigger Duty To Consult First Nations

Many businesses that develop natural resources depend on compliance with statutory and regulatory regimes to acquire a secure, exploitable, interest in Crown lands. A recent decision by the Yukon Court of Appeal indicates that, unless those regimes have allowed for consultation with First Nations before industry acquires an interest in Crown lands, development or exploration activities on those lands could be challenged.

On December 27, 2012, the Yukon Court of Appeal (composed of three judges of the BC Court of Appeal) issued its decision in Ross River Dena Council v Government of Yukon, concluding that the Yukon has a duty to consult with First Nations before recording a mineral claim. This decision will likely affect free-entry mining regimes across Canada. It could also affect other legislative schemes under which government officials grant interests in Crown lands without exercising any discretion.