The leaders of the Yukon’s unsigned First Nations are lambasting the territorial government’s move to try to take its dispute with the Ross River Dena Council to the Supreme Court of Canada.
The Ross River Dena Council brought a suit against the Yukon government in 2011, arguing that the current free-entry staking system violates its aboriginal rights.
It ended up losing that case, but an appeals court overturned that original decision.
In making its ruling, the appeals court made two declarations.
The first was that the territory has a duty to consult with unsigned First Nations about where staking can take place within their traditional territories. The second was that the government has an obligation to notify – and where appropriate – consult and accommodate First Nations before any mining or exploration activities can take place.
The government has accepted the second declaration but it is seeking clarification from the high court on the first one.
It’s a just waste of taxpayers money, said Liard McMillan, the chief of the Liard First Nation.
“It completely contradicts what the premier has said in the past when he’s criticized the Kaska wasting hundreds of thousands of dollars on lawyers and consultants,” he said. “I don’t see how he could say that and then turn around and take us to court on an issue that the judge has already ruled on.”
McMillan accuses the premier of trying a “divide-and-conquer strategy” when dealing with the territory’s unsigned First Nation governments outside of the courtroom.
“We wanted to talk about the court ruling and what it means in terms of the free-entry mining system and what consultation will look like,” said McMillan. “His response was that he didn’t want to deal with it because he was contemplating whether or not they were going to appeal the decision and he didn’t want Ross River to be at the table for those discussions.”
Both the Kaska – which includes both the Ross River Dena and Liard First Nation – and the White River First Nation have yet to sign land claim agreements with the government.
Their traditional territories combined span 122,230 square kilometres of the Yukon.
“We’ve always asserted that we would prefer to go to negotiation over litigation,” said McMillan. “The mining industry is going to lose big time at the end of the day, because those recent actions by the premier and his government (are) going to create greater uncertainty and instability for investment.”
But the Yukon government argues in its filings to the Supreme Court that the appellant ruling has created that uncertainty.
“If the decision of the Court of Appeal is allowed to stand, the current system of free entry used in much of Canada is at risk,” states the government’s submission.
And that could have implications far beyond the Yukon, as the free-entry system is a essential part of Canada’s mining industry, the government stressed.
For the appeal to be heard, the government has to first apply for a leave to appeal, which it did this week.
It’s now up to the high court as to whether the case will move forward. The vast majority of cases never do, but Ken Coates, a Canadian historian who studies the history of the North and First Nations rights, told the News earlier this week he thinks this case has a fairly good chance of being heard by the court.
“I’m not surprised that the Yukon government is taking it to court and I wouldn’t be surprised if the Supreme Court decided to hear it as well,” he said. “If they don’t, then it kind of stands as law rather untested in the sense that it hasn’t gone to the Supreme Court and so there would be a question in other parts of the country whether that same ruling would apply.”
Even if the court decides to hear the case it could be up to two years before a decision is made.
The Court of Appeal suspended its declarations for a year to give the government time to make the necessary legislative changes.
If the case moves forward to the Supreme Court that moratorium will likely be extended until a final verdict is rendered.
That means under the law it’s still business as usual when it comes to mineral staking – but not if the Kaska have anything to say about it.
“While YTG ignores their obligations, Kaska will be forced to take further action to illustrate to industry and the public that the Court of Appeal decision is legal reality,” said George Miller, the Kaska Dena Council chair, in a release.
“There may be other court cases, other litigation that we may end up bringing forward to deal with the issue of consultation,” said McMillan. “But also roadblocks and other civil disobedience may not be out of the question.”
But McMillan stressed that their fight was with the Yukon government, not industry, and that they will honour agreements they have already struck with mining companies.
While McMillan pledged that the Kaska will uphold the ban on mining and oil and gas development on their traditional territory, they will still take other proposals from industry under consideration.
“If the project appears to be reasonable from a socioeconomic environmental perspective and respects Kaska aboriginal rights and the company approaches us at the earliest outset of the project to address those issues, then we may allow it to go forward.”
Contact Josh Kerr at firstname.lastname@example.org