The Yukon Supreme Court has declared the territory is obliged to consult with the Ross River Dena Council about mining exploration in its traditional territory after mining claims are granted.
It wasn’t exactly what the First Nation applied to the court for. It was hoping for a declaration the duty to consult must be fulfilled before the claims are issued.
But after the claim is granted, the First Nation can determine the potential impact exploration might have while giving some security to the claim holder, wrote Justice Ron Veale in his decision.
And the duty to consult about new exploration can be satisfied by simply giving the First Nation the government’s monthly report from the mining recorder, wrote Veale.
But after reviewing the whole process of recording and issuing mining claims, and considering exploration has met unprecedented levels over the past two years, Veale questioned the government’s ability to monitor the work going on in the territory.
A major reason for his declaration that consultation doesn’t need to happen until after a mining claim has been issued is because the government doesn’t find out about the claim until then.
When the mining recorder records a mining claim, it is the first record the government has. There is no notice or permit required for exploration work. And the Yukon Environmental and Socio-Economic Assessment Board doesn’t need an application until exploration is past the initial first stage.
Veale also reviewed three agreements signed between the territory and the Kaska Nations, which includes the Ross River Dena Council and the Liard First Nation.
One, which was in effect from March 2003 until August 2005, said the territory will “not agree to any significant or major dispositions of interest in lands or resources or significant or major authorizations for exploration work and resource development in Kaska traditional territory without consulting and obtaining the consent of the Kaska.”
The agreement led to changes in the Quartz Mining Act forms, which now notify people wishing to record a claim in Kaska traditional territory that the lands “are subject to unsettled aboriginal land claims.”
All three agreements between the Kaska and the territory acknowledge the aboriginal group asserts rights and claims in the area.
The clarification in Veale’s decision was that, as territorial counsel argued, the agreements don’t acknowledge the Kaska have established those aboriginal rights and claims, just that they assert that they have them.
The Kaska constitute two of three Yukon First Nations that have not settled a land claim or signed a self-government and final agreement.
Negotiations began with Canada in 1996. In 1999, the Liard First Nation and the Ross River Dena Council requested they negotiate at the same table, to sign a single, Kaska agreement or two separate but very similar agreements. But in June of 2002, Canada’s mandate to negotiate expired and, when a formal offer to settle was turned down, negotiations ended.
Because of these earlier negotiations, eight per cent of the Ross River Dena Council’s traditional territory is in withdrawal from staking until March 31, 2013, wrote Veale.
Despite that, out of 226,961 quartz mining claims in good standing in the territory, there are 8,633 active in the First Nation’s traditional territory, covering 14 per cent of that area, the decision said.
In total, the Ross River Dena Council’s traditional territory makes up 13 per cent of the territory, or 63,110 square kilometres, which is roughly the same size of Latvia or Lithuania, the decision continued.
Kaska traditional territory represents 23 per cent of the Yukon and encompasses one out of three operating mines in the territory.
Veale’s decision also notes from January 2011 to the end of June, the number of quartz mining claims in good standing in the Yukon has increased by 68,542.
Exploration program costs in that same time have increased by about $100 million, the decision said.
Contact Roxanne Stasyszyn at