plenty at stake

In late December, the judges found that aboriginal rights are being violated by the government's current method of awarding mineral rights and the accompanying right to explore.

Reports on the death of free-entry mining in the territory have been somewhat exaggerated.

True, the Court of Appeal has ordered the Yukon government to change how it handles mineral exploration within the traditional territory of the Ross River Dena Council.

In late December, the judges found that aboriginal rights are being violated by the government’s current method of awarding mineral rights and the accompanying right to explore.

Stake a claim, and you’re entitled to perform Category 1 exploration work. While this doesn’t allow the use of big machinery, it still allows clearing trees, building trails, excavating rock and detonating explosives. All this can be done without so much as contacting a government official, or an affected First Nation.

Ross River saw this as an infringement on their own claim to their territory. The courts have agreed, finding that the territory owes Ross River a duty to consult when such work could very well interfere with Constitutionally-protected First Nation activities, such as hunting and fishing.

While the decision only refers to Ross River’s First Nation, its underlying principles likely apply to the territory’s two other unsigned First Nations. All put together, their traditional land makes up a considerable chunk of the Yukon. It’s more than 122,000 square kilometres, or nearly one-quarter of the territory’s land mass.

Now the territory has one year to figure out how to bring its mining laws into compliance.

Ross River’s First Nation wants to be consulted before a claim is staked. Miners are understandably apprehensive about this. The location of proposed claims is so sensitive, it’s not unusual for a helicopter pilot to only know where he’s about to fly once his chopper’s motors are powered up. Mineral claims are awarded to whoever stakes a claim first, and it only takes one loose set of lips to hand a valuable area to a competitor.

But a close inspection of the Appeals judgment suggests that miners may not need to tip their hand. As the judges wrote, “the location and recording of a quartz mining claim, in and of itself, is not likely to interfere with aboriginal rights other than title. It is the actual performance of work on the land that may affect such claimed rights.”

In other words, the big problem is the automatic conferral of the right to clear trees and blow things up – activities that all fly beneath the radar of the Yukon Environmental and Socio-economic Assessment Board during the early stages of exploration.

It doesn’t need to be this way. For an example of how our system could be tweaked to allow aboriginal consultation, look to Ontario, which recently modernized its mineral rights regime.

The province’s new rules still allow prospectors to stake first and ask questions later. But a mineral claim no longer comes with a free ticket to conduct the more invasive types of early exploration work, such as line cutting, mechanized drilling, surface stripping, and pitting and trenching. Miners now need to apply for a licence and submit a plan to do this sort of work.

Aboriginal communities potentially affected by such activities have a chance to provide comments before a decision is made to grant a permit. Ontario’s new laws also allow First Nations to withdraw areas from staking considered to be of special cultural importance.

In an ideal world, the Yukon would build new mineral exploration laws from the bottom up. But, as a year isn’t a long time to craft new legislation, it may be prudent to begin by considering whether Ontario’s modifications could be cribbed to suit our own purposes.

The Yukon Chamber of Mines sees the speedy completion of regional land-use plans as the best fix. This is certainly part of the puzzle. Put crudely, these plans help designate which areas are for hunting and fishing, and which are for knocking over trees and blowing things up. This clarity would help avoid future conflicts between miners and other groups.

Unfortunately, land-use plans take a long time to complete. And the Yukon Party has so badly botched its handling of the plan for the Peel watershed, it’s hard to muster much faith in this government completing any similar plans any time soon. But at least with the Appeal Court breathing down their necks, cabinet has another compelling reason to try.

In the meantime, here’s a reasonable stopgap measure. Since 1988, the territory has granted interim protection to 4,800 square kilometres of Ross River territory. This protection is up for renewal in March. During talks to renew this arrangement, the First Nation and territory should hash out what other contentious areas should be set aside to avoid future conflicts.

Some conservationists will be disappointed to see here no strident calls for the end of the free-entry system itself, which is often attributed as the root of the problem. We’re not sure that’s the case.

Free-entry is simply the system of acquiring mineral tenure. It’s so-called because prospectors are free to enter public land and stake a claim, which is later recorded by the government.

But to get at the shiny metal, you still need to do exploration work, which can be regulated by the government. These two things, tenure and exploration, are often conflated – in part, because miners are fond of asserting both as God-given rights. But to properly understand the problem, both issues need to be picked apart.

The alternative to free-entry is a concession system. In it, miners apply for mineral rights and the government awards them as it sees fit. Occasionally, mineral tenure is put out for bid.

Both free-entry and concession systems have their advantages and drawbacks. The former depends on market forces and requires less bureaucracy, while the latter allows the government to exercise more choice in who obtains mineral rights. According to the Yukon government, jurisdictions that depend on concessions end up dominated by big companies, while free-entry is more favourable to the little guys.

One criticism of free-entry is that it values mineral exploration above all activities. But that’s only true in the absence of land-use planning and the setting aside of contentious areas.

Free-entry is also faulted for some recent disputes that have arisen from mineral claims within municipal limits. Here, too, the blame seems misplaced. Our present laws already allow the government to ban staking wherever it pleases, as the territory did when it forbade new quartz claims within much of Whitehorse this summer. More should be done to prevent landowners from discovering that mineral rights beneath their yards have been claimed, but this doesn’t require ditching the whole system.

Critics note that free-entry dates back to the gold rush (indeed, it has its roots in medieval times), but it remains the predominant system used in the English-speaking world. Alberta, P.E.I. and Nova Scotia are the exceptions in Canada that use concession systems.

Our preference to keep free-entry is mostly a practical one. It would take too much work, and too much fighting (what would the guy on our licence plates think?) to make a switchover worthwhile.

So let’s make the system work right. To get there, Ontario probably has some ideas worth stealing.