Re: First Nation and YTG appeal court decision on staking consultation (the News, Dec. 21):
Yukon Supreme Court Justice Ron Veale ruled that the Yukon government is not obligated to consult with First Nation until after a mineral claim has been issued. Veale also stated in his decision that “the duty to consult could be quite easy Ã simply emailing or giving the First Nation the government’s monthly report from the mining recorder.” The government didn’t think a consultation before or after the staking is necessary and filed a notice for cross appeal.
Consultation can be defined as an exchange of views between two or more parties in an attempt to reach a decision where all views are given consideration. My understanding is that First Nation rights are protected under Section 35 (1) of the Canadian Constitution (case law: Haida vs. B.C., 2004). These rights are “upstream” of any federal, provincial or territorial legislation.
The Quartz Mining Act is a piece of territorial legislation from July 1924. Under treaty or First Nation rights, the government can take up land for various purposes or give out land leases, but it cannot take up all the land as to render the First Nation treaty rights meaningless.
According to the News article, the Yukon government has allowed Ã under the Quartz Mining Act Ã the staking of 14 per cent of the Ross River Dena Council’s traditional territory.
Large-scale staking, as it is happening in the territory right now, has a different dimension in comparison to the staking of a few claims by individual prospectors. The activity of large-scale staking includes camps, heli-pads, cutlines and ATV traffic which may result in significant impacts to the landscape.
Meaningful consultations prior to these activities should take place in order to avoid infringement of First Nation rights in their traditional territories. That is, the government must not only send a letter of referral of a project, but must be willing to meet to discuss how a First Nation wants to be consulted with the government.
Consultations need to happen in a timely manner and cannot be rushed. First Nations need sufficient capacity to consult on a government referral and often governments will have to fund the First Nations to build capacity to be able to consult in a meaningful way.
Legally, only the government has the duty to consult with the First Nation. Consultations or negotiations between First Nation and industry proponents may not fulfill or replace the government’s duty to consult. The courts have decided that those duties go beyond the terms of final agreements with self-governing Yukon First Nations (Google search: Guideline I of “Establishing Respectful Relationships with Yukon First Nations on the Alaska Highway Pipeline Project”).
The reasons for consultations are obvious. Meaningful consultation may stop or reduce infringements of First Nation and treaty rights. Also it will impact the future relationship between the governments in a positive way.