Ross River wins staking appeal

The territory needs to consult with unsigned First Nation governments before a mineral claim is staked on their traditional lands, says a recent Appeal Court decision.

Updated Jan. 4.

The territory needs to consult with unsigned First Nation governments before a mineral claim is staked on their traditional lands, says a recent Appeal Court decision.

The current practice of simply notifying the First Nation after a claim has been staked does not satisfy the territory’s duty to consult, concluded the three-judge panel.

“It means it’s not going to be business as usual when it comes to recording quartz mineral claims and conducting the associated exploration activities,” said Stephen Walsh, the lawyer who represented the Ross River Dena Council in court.

Under the territory’s free-entry system, anyone can stake a claim in the territory. And once the claim is registered with the mining recorder, the holder of the claim has the right to carry out Class 1 exploration work.

That includes things like clearing trees, building trails, digging up rock and the use of explosives.

In 2011, at the height of the staking boom, the Ross River Dena Council brought suit against the Yukon government, arguing that the current system was a violation of their aboriginal rights.

“One claim somewhere out in the boonies likely won’t have much of an impact on the asserted rights, but the cumulative effect of hundreds and hundreds, in some cases thousands of them, is undeniable,” said Walsh.

The territory argued that requiring consultation with First Nations before a claim had been staked would be an administrative nightmare that would impose an onerous obligation on both governments.

In a decision that year, Yukon Supreme Court Justice Ron Veale sided with the government, ruling that it was meeting its obligation by consulting with First Nations after a claim was staked.

“The appropriate time for consultation is after the grant of the mineral claim, when the holder of the claim has some security of tenure and the First Nation is able to determine its potential adverse impact,” said Veale.

But the appeal court disagreed.

In a 15-page decision, it concluded that the potential impact of exploration work was too great to put off consultation until a claim is registered.

“While Class 1 exploration programs are limited, they may still seriously impede or prevent the enjoyment of some aboriginal rights in more than a transient or trivial manner.”

The appeals court ruled the territory has a duty to consult “before aboriginal title or rights are adversely affected.”

The court suspended its declarations for a year, giving the territory time to work out the details.

While it could require statutory changes, the court pointed out that under section 15 of the Quartz Mining Act the government has the ability to prohibit mining claims on certain lands.

Although this decision only applies to the Ross River area, its results could have implications for the two other non-signed First Nations as well, said Michael Kokiw, the executive director of the Yukon Chamber of Mines, which acted as an intervener in this case.

“Depending what the government does to make sure that the duty to consult is done, that remedy could affect other unsettled First Nations,” he said.

In Walsh’s view, however, this ruling will definitely have an effect on how those lands are treated.

“It certainly applies to the rest of the Kaska territory, there’s no doubt about it in my mind and I can’t see any reason in principle why it wouldn’t apply to White River’s traditional territory. They’re in precisely the same situation as the Kaska are,” said Walsh.

The Ross River area, at 63,000 square kilometres, represents about 13 per cent of the entire Yukon, but the total area of land that unsigned First Nations claim is almost double that.

In the Yukon, the traditional Kaska territory – which includes both the Ross River and Liard First Nations – spans 112,860 square kilometres. The White River First Nation’s traditional territory encompasses 9,370 square kilometres.

While Kokiw said he thought the ruling missed some of the points that the chamber brought up, he’s optimistic that a solution can be found that satisfies the needs of both the exploration industry and First Nations.

“A lot of the First Nations are open for business,” he said. “We’ve spoken to the Kaska, they’ve come forward and said that they want to be involved in future projects and in future mining and they know this is going to have a bit of an impact on their economic growth as well.”

What’s needed is a land-use plan for the area, said Kokiw.

“I think what we’re talking about is the two governments having a real discussion about which part of the land is important to them,” he said.

The government has 30 days to appeal the decision to the Supreme Court of Canada.

Contact Josh Kerr at

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Dr. Brendan Hanley, Yukon’s chief medical officer of health, speaks at a press conference in Whitehorse on March 30. Hanley announced three more COVID-19 cases in a release on Nov. 21. (Crystal Schick/Yukon News file)
Three more COVID-19 cases, new exposure notice announced

The Yukon’s Chief Medical Officer of Health, Dr. Brendan Hanley, announced three… Continue reading

Yukonomist Keith Halliday
Yukonomist: COVID-19 strikes another blow at high-school students

They don’t show up very often in COVID-19 case statistics, but they… Continue reading

The Cornerstone housing project under construction at the end of Main Street in Whitehorse on Nov. 19. Community Services Minister John Streicker said he will consult with the Yukon Contractors Association after concerns were raised in the legislature about COVID-19 isolation procedures for Outside workers at the site. (Crystal Schick/Yukon News)
Concerns raised about alternate self-isolation plans for construction

Minister Streicker said going forward, official safety plans should be shared across a worksite

The Yukon’s Chief Medical Officer of Health Dr. Brendan Hanley, pictured at a press conference in October, announced three new cases of COVID-19 on Nov. 20 as well as a new public exposure notice. (Crystal Schick/Yukon News file)
New COVID-19 cases, public exposure notice announced

The new cases have all been linked to previous cases

Beatrice Lorne was always remembered by gold rush veterans as the ‘Klondike Nightingale’. (Yukon Archives/Maggies Museum Collection)
History Hunter: Beatrice Lorne — The ‘Klondike Nightingale’

In June of 1929, 11 years after the end of the First… Continue reading

Samson Hartland is the executive director of the Yukon Chamber of Mines. The Yukon Chamber of Mines elected a new board of directors during its annual general meeting held virtually on Nov. 17. (Joel Krahn/Yukon News file)
Yukon Chamber of Mines elects new board

The Yukon Chamber of Mines elected a new board of directors during… Continue reading

The Yukon Hospital Corporation has released its annual report for 2019-20, and — unsurprisingly — hospital visitations were down. (Crystal Schick/Yukon News file)
Annual report says COVID-19 had a large impact visitation numbers at Whitehorse General

The Yukon Hospital Corporation has released its annual report for 2019-20, and… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

City council was closed to public on March 23 due to gathering rules brought on by the COVID-19 pandemic. The council is now hoping there will be ways to improve access for residents to directly address council, even if it’s a virtual connection. (Crystal Schick/Yukon News file)
Solution sought to allow for more public presentations with council

Teleconference or video may provide opportunities, Roddick says

Megan Waterman, director of the Lastraw Ranch, is using remediated placer mine land in the Dawson area to raise local meat in a new initiative undertaken with the Yukon government’s agriculture branch. (Submitted)
Dawson-area farm using placer miner partnership to raise pigs on leased land

“Who in their right mind is going to do agriculture at a mining claim? But this made sense.”

Riverdale residents can learn more details of the City of Whitehorse’s plan to FireSmart a total of 24 hectares in the area of Chadburn Lake Road and south of the Hidden Lakes trail at a meeting on Nov. 26. (Ian Stewart/Yukon News file)
Meeting will focus on FireSmart plans

Riverdale residents will learn more details of the City of Whitehorse’s FireSmarting… Continue reading

The City of Whitehorse is planning to borrow $10 million to help pay for the construction of the operations building (pictured), a move that has one concillor questioning why they don’t just use reserve funds. (Crystal Schick/Yukon News)
Councillor questions borrowing plan

City of Whitehorse would borrow $10 million for operations building

Most Read