The Yukon government and the Tr’ondek Hwech’in First Nation have reached an agreement that will pave the way for all Yukon First Nations to require advance notice of mining exploration activities across their traditional territory.
The agreement stems from a lawsuit filed by the Tr’ondek Hwech’in First Nation in Yukon Supreme Court last June.
On March 2, a consent order was filed in court declaring that “the Government of Yukon has a duty to notify and, where appropriate, consult with and accommodate the Tr’ondek Hwech’in before allowing (exploration) activities to take place.”
The order applies to Class 1 exploration, which is the lowest level of exploration and can include activities like clearing trees and building trails. Currently, no consultation or permits are required for exploration. Mineral staking is not included as an exploration activity and is not covered by the consent order.
The First Nation filed its lawsuit in response to a 2012 court of appeal decision that found that the Yukon government had to consult the Ross River Dena Council before allowing any type of mining exploration on the First Nation’s traditional territory.
In 2014, the Yukon government extended that requirement to all category A and B settlement lands, the remainder of the Kaska traditional territory, the asserted area of the Taku River Tlingit First Nation and the shared traditional territory of the Kluane First Nation and the White River First Nation.
At the time, the government promised to work with First Nations to extend that requirement across the Yukon. But “those discussions were never concluded,” said John Bailey, an assistant deputy minister with the Department of Energy, Mines and Resources.
As a result, the Tr’ondek Hwech’in filed a lawsuit last year.
Now, the new consent order extends the notification requirement to the entire Tr’ondek Hwech’in traditional territory.
The new rules won’t come into effect until Feb. 23, 2018. That’s partly to allow time for the requirement to be adopted by all Yukon First Nations.
“We’re looking at a likely scenario where we would have a solution that would apply across the territory,” Bailey said.
In the coming year, the government and First Nations will also discuss thresholds for Class 1 notification. For instance, some very minor exploration activities might not require notification.
But Stephen Walsh, the lawyer representing the Tr’ondek Hwech’in First Nation, said establishing thresholds may be easier said than done. A minor activity in one location might not be so minor in another area, he explained.
“It’s not as easy and clear-cut as one might think at first blush,” he said, adding that it might be difficult to find a “one-size threshold beneath which absolutely no consultation is ever required under any circumstance.”
Still, Walsh said the agreement is a “good sign” that the new Liberal government is serious about working with First Nations.
“I think that they did the appropriate thing and I hope it’s an omen for how they intend to approach similar matters in the future,” he said.
For now, the Tr’ondek Hwech’in and the Yukon government have signed a memorandum of understanding committing to work together.
All of the self-governing Yukon First Nations have also signed another memorandum of understanding, announced at this year’s Mineral Exploration Roundup in Vancouver in January, agreeing to “review and improve YG and First Nation legislation and policies” related to mining.
The Yukon Chamber of Mines could not be reached for comment by press time.
With files from Pierre Chauvin
Contact Maura Forrest at maura.forrest@yukon-news.com