It is probably the most audacious demand we’ve heard since Donald Trump insisted that the Mexican government will pay the cost of his planned wall along the US-Mexico border. And it was a demand made right here in the Yukon.
The application of two Dawson area miners to the Yukon Surface Rights Board requesting that the Tr’ondek Hwech’in First Nation be forced to remove an entire subdivision of 40 families along with their homes and associated infrastructure — on their own settlement land at that — outraged social media when the story hit the news last week.
The miners who brought the application hold several placer claims that predate the negotiation of the final agreement between the First Nation and the government. Now they apparently want to mine these claims.
It is not at all uncommon in the Yukon for one party to have rights to the surface while someone else has the rights to the minerals that lie beneath it.
And frequently the holder of the surface rights is a Yukon First Nation. This is because many mineral claims happen to fall on category B settlement land. Category B settlement land is land where the First Nation does not own the subsurface rights. On category A settlement land the First Nation owns the subsurface mineral rights as well.
In fact, when land claims were being negotiated part of the reason that particular parcels of land were designated as category B rather than category A was so the government could avoid having to expropriate existing claims from miners and pay compensation.
And while the settlement land with overlapping mining claims is often in lightly used rural areas, in this particular case they happen to be smack dab in the middle of a residential subdivision.
Under the terms of the final agreement, the miners do have a right of access to the claims but there are limits spelled out as to how that right of access may be exercised. The Yukon Surface Rights Board is an entity established to resolve disputes when land owners and the holders of subsurface mineral rights disagree on how access should be exercised.
This news story understandably resonates with the public because of our territory’s checkered past in terms of its treatment of First Nations people. The idea of booting First Nations people off their own land to mine it conjures images of how things were done back in the colonial era when the livelihood of Yukon First Nations was treated as a distant second to the economic pursuits of miners and other settlers. It is certainly not how things are done (or how they are supposed to be done) in the era of modern land claims agreements and entrenched constitutional rights.
If the application before the Yukon Surface Rights Board were indeed successful it would set the project of reconciliation that has been ongoing in the territory back a generation. So the stakes are high in a sense.
But while the indignation that we might feel towards the fact the application was made in the first place is justified, it is important to bear in mind that at this point it is only an application. So far no one in any position of authority has actually done anything.
One of the most common questions I get as a lawyer is “Could so-and-so sue me for doing this thing?”. The answer is that anyone can sue anyone at any time for any reason. With very few exceptions there is no bar to actually commencing a claim. The real and more important question is how much time and money it is going to cost to make it go away.
Yes, one of the unfortunate and unavoidable features of our legal system is that unmeritorious proceedings containing excessive demands are commenced every day. There is really very little that can be done to prevent the claim from being brought in the first place.
The same goes for proceedings in front of quasi-judicial bodies like the Yukon Surface Rights Board.
It seems highly unlikely that the end result of all of this will be the removal of an entire subdivision.
The powers of the Yukon Surface Rights Board are all geared towards a reasonable balancing of the respective interests of the parties. And it would seem obvious on its face that requiring that a First Nation remove an entire residential subdivision from its settlement land to allow for access to a handful of mining claims is hardly a reasonable reconciliation of those rights.
The Tr’ondek Hwech’in’s Final Agreement has something to say about the matter as well. It states: “The rights of access [to pre-existing mineral claims] are subject to the conditions that there shall be no… significant damage to improvements on the Settlement Land.”
This isn’t to say that the miners don’t have a legitimate grievance or that they lack legal recourse under for loss of access to their claims. That may be the case. But we shouldn’t read too much into the fact that this particular demand was made.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.