Mining News

Canada’s Free Entry Staking System in Legal Limbo

Posted by Alana Wilson on 9/24/2013 10:27:17 AM

by Alana Wilson

Recently, the Supreme Court of Canada decided that it will not review the decision of the Yukon Court of Appeal that has put the “free entry” staking system into legal limbo. According to the Financial Post, the Supreme Court “dismissed with costs” the Yukon government’s application for leave to appear the appellate decision.

Last December, a three-judge panel of the Yukon appellate court unanimously held that the Territory’s hard rock mining legislation, the Quartz Mining Act, violated the Canadian constitution because it required mining claims to be recorded before any consultation over the legal status of the land had taken place between the crown and natives.

According to Ana Komencic on, this decision has the mining industry riled up as it assesses what it will mean for the mining sector.

Most Canadian jurisdictions operate under a "free entry" system whereby companies can acquire exploration rights by ground-staking – a process which requires no advance government approval.
Last year the Yukon Court of Appeal ruled that "free entry was incompatible with the Crown's duty to consult aboriginal people before making rights to Crown land available," explains Barry Barton, an internationally recognized expert in mining law and author of Canadian Law of Mining.

According to Barton, this decision will have implications for nearly all Canadian provinces and territories as they will have to amend their mining acts. The changes needed are unclear however as the ‘courts did not specify which amendments would be acceptable’.

The chief of the Ross River Dena Council, the First Nation that brought the court challenge to the Government of Yukon, has stressed that they are not against mining but that the industry must provide more benefits to First Nations. The Yukon Chamber of Mines president has also said that he believes accommodations can be worked out with the Ross River Dene Council and that the impasse is temporary.

The Yukon is ranked 8th in the most recent 2012/2013 Survey of Mining Companies and, according to survey respondents, ‘uncertainty concerning disputed land claims’ is not a strong deterrent to investment. Only 3% of respondents were strongly deterred or would not pursue investment due to this uncertainty in the Yukon, whereas 42% of respondents said it was not a deterrent to investment and 21% said (low) uncertainty encouraged investment. The 2013 Mining Survey is now underway and miners in the Yukon and across Canada will no doubt be watching this decision and potential challenges to ‘free entry’ staking in other parts of Canada.

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