The Yukon Surface Rights Board has rejected an application by placer miners in Dawson City who were trying to flatten homes in a Tr’ondek Hwech’in First Nation neighbourhood in order to mine the land underneath.
Michel Vincent and Michael Heydorf made the application earlier this year.
They wanted an order forcing the removal of all buildings, sewer, water and power lines from a block of land in the Tr’ondek subdivision.
The neighbourhood is on parts of old claims the pair own. The claims were staked in the 1970s and ’80s, before the First Nation had any settlement agreement.
Part of the land is now First Nation settlement land and the neighbourhood is home to around 40 families.
In August the original application was ruled incomplete and Vincent and Heydorf were given 60 days to improve it.
In rejecting the application earlier this week, board chair Myles Thorp said the miners failed to negotiate with the First Nation before asking the board to intercede.
A person can only apply to the board if they have “attempted to resolve the matter” first, according to Thorp’s letter dated Nov. 14.
In this case, that didn’t happen, he said.
In June, the two miners sent the First Nation a letter asking that all infrastructure and buildings be removed from the land.
In July, Vincent and Heydorf got a letter back from Daryn Leas, a lawyer representing the First Nation. It said the First Nation would be expecting security and compensation if mining were to happen.
Based on their application, it appears Vincent and Heydorf took that letter to mean the First Nation was refusing to negotiate, and went directly to the board.
But that’s not enough, the board ruled.
“This simple exchange of correspondence between the applicants and THFN does not meet the requirements of negotiation as expressed in the act and elaborated upon in the rule,” Thorp wrote, after quoting the dictionary definition of “negotiation.”
A review of the correspondence shows “no real effort” to work out their differences, he said.
Vincent and Heydorf “either disregarded, or were unwilling to discuss, their potential obligations in the relationship, namely to provide security and/or compensation in relation to the anticipated interference with THFN surface rights over the subject lands.”
The lack of any negotiation was enough for the board to throw out the application, but it wasn’t the only problem.
The miners didn’t identify other parties that may have an interest in the situation, the board said.
According to the letter from the First Nation’s lawyer, Northwestel, Yukon Energy, the Yukon government and the City of Dawson all have assets on the land.
Vincent and Heydorf tried, unsuccessfully, to argue that it should be the law firms’ responsibility to identify other interests on the land.
Lastly, the board said Vincent and Heydorf didn’t prove the board actually had the legal authority to grant the order they were asking for.
“The chairperson brought this concern to the applicants’ attention in his Aug. 31 letter and invited them to respond with specific legislative references,” the decision says.
“Unfortunately, the applicants responded in their Oct. 29 letter that they merely assumed the board had jurisdiction and left it at that.”
The board said the miners could resubmit a new application after negotiating in good faith with the First Nation and with other interested parties.
The problems with the application might have been avoided if the applicants had “obtained even a modest amount of legal advice,” Thorpe notes at the end of his letter.
“The board urges them to consider consulting a lawyer before reapplying, should they decide to do so in the future.”
Vincent and Heydorf have not responded to prior requests for comment. A phone number listed on documents filed to the surface rights board was out of service.
Contact Ashley Joannou at firstname.lastname@example.org