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