Cruising for a bruising

The Kaska have always loved a good fight. Their leaders' legitimacy appears to be conferred through brawls with the territory and Ottawa.

The Kaska have always loved a good fight.

Their leaders’ legitimacy appears to be conferred through brawls with the territory and Ottawa. When they aren’t tussling with other governments, the Kaska nations seem to keep in shape by scrapping with each other.

Happily enough for them, Resources Minister Brad Cathers seems to have thought it would be smart to poke them in the eyes. Bad move.

The Yukon Party government is trying to disarm the Kaska by removing their veto over oil and gas development on their traditional territory in the southeast. The Kaska have responded by flashing some of the other weapons in their arsenal: namely, lawyers and blockades.

The Kaska are vowing to ban not just oil and gas work, but also all new mineral exploration and mining in the region. They plan to back up these threats with a volley of lawsuits. And they’re toying with the idea of blockading the North Canol Road.

Cathers objects that the Kaska are being unreasonable. Well, what else is new? The Kaska have always driven a hard bargain. That’s why they turned up their noses at the Umbrella Final Agreement and refused to sign land claim agreements. That doesn’t mean that the solution is to push them into a corner.

The Yukon Party is probably drooling at the prospect of getting in on the big gas plays waiting to be tapped in the region. In northeast British Columbia, just south of the border, Apache Corp. is touting what it calls one of the best shale-gas reservoirs in North America.

Details of the territory’s gas plans for the southeast have been revealed this week, through a briefing note obtained by CHON FM. The note, prepared for the deputy minister of energy last autumn, says that the dwindling Kotaneelee gas well may be purchased by new owners with “ambitious and immediate” plans. This would involve drilling deeper at Kotaneelee, and exploiting a similarly-sized reservoir nearby.

And there’s plenty of potential to tap shale gas, the memo notes. That’s what Apache has done in northern British Columbia, through the controversial method of hydraulic fracturing, or fracking.

But an oil and gas company would be foolish to invest in the Yukon’s southeast as things stand. Veto or no veto, the Kaska possess unextinguished aboriginal title to their land.

From a practical point of view, development will be frozen in the region until the Kaska agree to it. And Cathers now finds himself further than ever from achieving this goal.

According to Cathers, talks to strike an agreement over resources have gone nowhere after more than a decade and $2 million spent. During recent talks, the Kaska have tried to include a raft of side issues, such as the handling of the cleanup contracts for the Faro mine.

Apparently, the Yukon Party thinks the only way to break the Kaska impasse is through a fight. They should think again. As we reported last week, governments rarely win resource battles with First Nations.

By the count of Bill Gallagher, a lawyer who has just written a book on the subject, First Nations across Canada have won 170 nearly-consecutive legal battles over resources.

So how to you persuade a hard bargainer like the Kaska to negotiate? It would probably help to treat them with respect and as equals. Too often, the Yukon government instead treats First Nations with indifference and as subordinates. They deal with them when it’s convenient, and ignore them or play silly games when it’s not. (See: watershed, Peel.)

A long-running court battle now seems inevitable over the Peel spat. Will the same thing happen in the southeast? It’s possible. And it would be a strange legacy for the Yukon Party, which is keen to be seen as the defender of the resource extraction sector.

Notably, a blockade of the North Canol could be bad news for North American Tungsten, which has its Mactung deposit along the roadway, near the N.W.T. border. The company aims to build an underground mine that would be open for at least 11 years and employ between 150 to 200 people.

Like many other mining projects, Mactung is no sure thing. But Kaska opposition would ensure it doesn’t get off the ground any time soon.

As a bonus, Cathers has also strengthened the hand of Liard McMillan, the NDP-sympathizing chief of the Liard First Nation. The long-serving McMillan has stated he plans to step aside after this term, but given the political ammunition this fight has given him, he could probably stick around if he wished.

The Kaska currently take the attitude that they have nothing to lose. The territory should be trying to impress upon them that they have much to gain.

The Kaska are currently among the poorest First Nations in the territory, but one day they could be the richest, thanks to the valuable treasure buried in their backyard. That could mean more housing and better community infrastructure in Watson Lake and Ross River, and good-paying jobs for members.

The Kaska were recently warm to development. They could be again.

But at this point, getting to yes won’t be easy. Among other things, the Kaska likely want a more advantageous royalty regime than what’s enjoyed by First Nations that signed the UFA. That’s a conundrum for the Yukon Party, for if they agree, they’ll have the signed First Nations asking for a sweeter deal too.

The territory will also need to persuade the Kaska that stringent measures will ensure that fracking can be safely performed without turning their traditional territories into, in the memorable phrase of McMillan, “a toilet bowl.”

Will these negotiations be an unenviable task? Certainly. Is there another option, if the Yukon Party is set on tapping oil and gas in the southeast? Probably not.