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First Nations lawsuits highlight planning and consultation tensions, experts say

Two Supreme Court petitions demand better consultation from the Yukon government
The Carcross/Tagish First Nation filed a petition on March 8 against subdividing land in their territory, in defence of the Southern Lakes Caribou herd. (Sheila Kyikavichik/Yukon News file)

Two lawsuits filed against the Yukon government this month could signal a future that demands land use planning and First Nations consultation prioritized more intentionally over mining and development, experts say.

“We’ve been approving fairly large-scale transformative developments across the territory in areas where we haven’t taken the time to consider what the best use of the land is,” said Chris Rider, executive director of the Canadian Parks and Wilderness Society (CPAWS) Yukon.

“Instead of land use planning, we’ve been approving projects on an ad hoc basis which is inherently the opposite of planning. I think this is a sign that First Nations are saying, ‘Enough is enough.’”

Two petitions fight for better consultation

The Carcross/Tagish First Nation filed a lawsuit against the government on March 8 for approving two subdivision applications on traditional territory without undergoing adequate consultation.

The petition alleges that the Yukon government “unreasonably dismissed” the impact of subdividing land in caribou habitat, and then disregarded the First Nation’s objections.

One week later on March 15, the First Nation of Na-Cho Nyäk Dun filed a lawsuit opposing the approval of mining activity in its traditional territory.

It argues that a land use plan is currently in development for the area in question — the Beaver River watershed — and all mining applications should be halted until that plan has been completed.

Toronto-based lawyer Nuri Frame, who is representing the First Nation of Na-Cho Nyäk Dun, told the News he sees parallels in broad movement between the two cases — and the previous Peel Region case heard by the Supreme Court of Canada.

“What we seem to be seeing is a real failure throughout large parts of the Yukon to fulfill the treaty promise in Chapter 11 of the Final Agreements, for regional land use planning,” Frame said.

“Again and again we seem to be seeing conflict, because the First Nations have not been allowed to play the decision-making role about where development will happen.”

The Yukon government is unable to comment on topics currently before the courts.

Lawsuit challenges concurrent staking and land use planning

The Na-Cho Nyäk Dun lawsuit claims that approving mining activity in the Beaver River watershed renders concurrent land use planning effectively meaningless.

Lewis Rifkind, mining analyst for the Yukon Conservation Society, says the Yukon has traditionally carried on “business as usual” while land use planning is underway.

“It’s this particular lawsuit in the Beaver River case that has hit the very middle of the issue,” Rifkind said.

“When you do land use planning, do you permit existing processes and resource extraction projects to continue, while you do the planning? That’s what this lawsuit will try to resolve.”

Continuing to allow those processes concurrently has historically caused issues in the Yukon.

When the Peel Watershed was protected through the Canadian Supreme Court, it left stakeholders still holding nearly worthless mineral claims. Last November, the vice-chair of the Dawson Regional Planning Commission resigned when the Yukon government refused to halt claims during the planning process.

Rifkind said the issue is “on everybody’s radar,” but no decisive action has been taken to resolve the dilemma. He suggested that in a perfect world, stakers’ claims would remain valid but no actual excavation work would be permitted until land use planning is completed.

Once the planning process is complete, there might be recommendations for limiting surface disturbance that development companies can work with, he suggested.

Legacy mining legislation a speed bump to moratoriums

“It’s an accident of history — we’ve had a free-entry staking system for over 100 years,” Rifkind said.

“I would argue that the treaty rights obviously take precedent, but the way systems have been set up, we now have this tension between the two.”

About half of the Yukon is subject to a free-entry system, which allows development companies to lay claim on land and then grants exclusive rights to that land.

“It limits, in a weird sort of way, what government can do to those rights,” Rifkind said. “It’s one of the unusual pieces of legislation in that whoever stakes the claim has a whole bunch of rights, and some responsibilities as well.”

Court case will seek resolution to impasse

Rifkind said he would “respectfully suggest” that it isn’t possible to strike a balance between environment and economy in relation to mining and development.

“Without an environment, you don’t have an economy, so the idea that there has to be balance between the two is ludicrous. You have to protect the environment,” Rifkind said.

Rider of CPAWS suggested that failing to properly consult with First Nations and honour treaty rights ultimately delays development, and is detrimental for all parties involved.

“I think there is a path forward,” Rider said. “The land planning process is there so we can make decisions on which areas should be opened for development and which areas have values that mean it’s much more important that we protect them.”

Obtaining informed consent from First Nations is critical, Rider continued.

“The clear path forward is to fully consult with First Nations, and not just ask them to share their views, but listen and take meaningful action based on those views.”

Frame suggested that the implications of the Na-Cho Nyäk Dun case are larger than the impact on the Beaver River watershed and the path forward is clearly outlined in the First Nations Final Agreements.

“The implications of failure to land use plan are much broader,” Frame said. “We’re hoping for clear judicial statements that there is a fundamental problem, and the Yukon government needs to step up right now to address that problem. The status quo simply can’t persist.”

Contact Gabrielle Plonka at