Twitter Moot 2014 Problem - Ross River Dena Council v. Yukon
West Coast Environmental Law's Twitter Moot 2014 will be held on Friday, February 28th, and will focus on an appeal from the Yukon Court of Appeal decision in Ross River Dena Council v Yukon to the Supreme Twitter Court of Canada.
The case was brought by the Ross River Dena Council, a First Nation, whose traditional territories cover approximately 63,000 hectares of the Yukon (about 13% of the Yukon Territory), and which has never entered into a treaty. The Ross River Dena Council were concerned about the large numbers of mining claims being made in their territory and the way they were being made. As the Court of Appeal explained, under the Territory’s Quartz Mining Act:
[A]n individual can acquire mineral rights simply by physically staking a claim and then recording it with the Mining Recorder. Once a quartz mining claim is recorded, the claimant is entitled to the minerals within the claim and may conduct certain exploration activities on the land without further authorization and without notice to the Government of Yukon.
The Ross River Dena Council argued that the Yukon Government has a constitutional duty to consult the Ross River Dena before allowing the establishment of these mineral rights in their territory. The Yukon government, by contrast, argued that because there was no government involvement in signing off on the claims, the government had no ability, or responsibility, to consult the Ross River Dena.
On December 27, 2012, the Yukon Court of Appeal (sister court to the BC Court of Appeal) agreed with the Ross River Dena and ruled that the Government of Yukon has a duty to consult with the Ross River Dena Council in determining whether mineral rights are to be made available to third parties, as well as with respect to mining exploration activities in Ross River territory. The court held that this consultation must be meaningful and “allow for accommodation to take place, where required, before claimed Aboriginal title or rights are adversely affected.” The Court’s order was suspended for a year in anticipation that the Yukon government may wish to make statutory and regulatory changes to provide for appropriate consultation to meet this constitutional responsibility.
The Court of Appeal decision in Ross River Dena Council may be of national significance. As we wrote in a wrote in a recent report, co-published with the Fair Mining Collaborative:
The decision of the Yukon Court of Appeal in Ross River Dena Council v. Government of the Yukon late in 2012 may force governments across Canada, including in BC, to rewrite their mining laws. The decision essentially holds that the free entry system — the system of allocating mineral rights that is central to mining law in much of Canada, including BC — is inconsistent with the obligation of the Crown to consult First Nations on decisions that may impact their Aboriginal title and rights. … The territorial government, like the BC Crown, has taken the position that with the free entry system, which provides for the acquisition of mineral rights through staking, it has effectively legislated itself out of its constitutional duties to First Nations. This position was rejected by the Yukon Court of Appeal in the recent Ross River Dena case.
The Twitter Moot problem and teams
For the purposes of the Twitter Moot, the Territory of the Yukon has filed an appeal of the Yukon Court of Appeal decision. The Supreme Twitter Court of Canada has agreed to hear arguments on the following issues only:
- whether the Court of Appeal erred in holding that consultation is required to determine whether mineral rights are to be made available to third parties in the Ross River Area; and,
- whether the Court of Appeal erred in holding that notification after a claim has been recorded cannot constitute adequate consultation.
The Teams in the Moot will represent:
- The Territory of the Yukon (Appellant) – The Government of the Yukon, who will continue to argue that the Yukon Quartz Mining Act is constitutionally valid and provides for sufficient consultation, to the extent any is required, of the Ross River Dena Council. (Factum - Filed 21 February)
- Ross River Dena Council (Respondent) – The Ross River Dena Council will continue to argue that the Quartz Mining Act violates their constitutional right to be meaningfully consulted and accommodated prior to mining rights being granted over their territory, and are asking for the Court of Appeal decision to be upheld. (Factum - Filed 21 February)
- Yukon Chamber of Mines (Intervenor) – The Yukon Chamber of Mines was an intervenor in the cases below, and supports the Yukon government’s positions. The Chamber of Mines will emphasize the challenges that consulting the Ross River Dena Council will pose for the mining industry. (Factum - Filed 21 February)
- MiningWatch Canada (Intervenor) – MiningWatch Canada exists to “Chang[e] public policy and mining practices to ensure the health of individuals, communities and ecosystems.” MiningWatch Canada will be intervening in support of the Ross River Dena Council and the Court of Appeal decision, with an aim to highlighting the broader environmental, public health and other concerns of the free entry system. (Factum - Filed 21 February)
- Province of British Columbia (Intervenor) – The Province of British Columbia will be intervening in support of the Yukon government, but with an aim to reducing the impact of any appeal decision on its own mining and other resource extraction laws. (Factum - Filed 21 February)
[Update: 13 February 2014 - In reality the Supreme Court of Canada denied leave to appeal on 19 September 2013, and the Yukon Legislature subsequently (on 19 December 2013) amended the Quartz Mining Act to respond to the Yukon Court of Appeal decision in Ross River Dena Council v. Yukon. For the purposes of the moot the teams have been asked to assume that the law is as it was on 19 September 2013.]
For more information about the Ross River Dena Case, read the Yukon Court of Appeal judgment, or the Environmental Law Alert that we have written on the case.
For information on the free entry system of mining and its environmental, Indigenous and social implications, see Modernizing BC’s Free Entry Mining Laws for a Vibrant, Sustainable Mining Sector.
Memo on the Twitter Moot Problem (Updated 13 February 2014) - describing the scope of the appeal and assigning roles to the Teams.
Twitter Moot Rules 2014 - describing the rules governing the Twitter Moot.