The Tr’ondek Hwech’in First Nation is suing the Yukon Government, arguing it has a duty to consult and notify the First Nation of any mineral exploration on some non-settlement land in its traditional territory before it happens.
In the lawsuit filed in Yukon Supreme Court last Friday, the First Nation claims it wasn’t consulted on mining exploration conducted since 2003.
In effect the lawsuit seeks to extend a 2012 court of appeal decision in favour of the Ross River Dena Council.
At the time the court ruled the Yukon government had to consult the Ross River Dena Council before any type of mining exploration could happen on the First Nation’s traditional territory, even Class 1 exploration.
Class 1 is the lowest level of exploration and can include activities such as clearing trees, building trails, digging up rock and the use of explosives.
The ruling led to the territory amending its Quartz Mining Act and Placer Mining Act and the associated regulations.
The new Class 1 exploration regime requires companies to notify the government. That regime applies on 47 per cent of the territory.
The government in turn has to notify the affected First Nation. But, years later, details around what that notification actually looks like still haven’t been worked out yet.
The new regime was extended to category A and B settlement land of Yukon First Nations and the traditional territory of unsettled First Nations.
The Tr’ondek Hwech’in First Nation has a final agreement so, as it stands, the rules don’t apply outside of category A and B land.
The lawsuit is seeking to have the regime applied across all the First Nation’s traditional land.
In 2014 the News reported other Yukon First Nations were demanding the same rules be created following the Ross River decision be applied to them.
The government’s response at the time was that they had to wait their turn.
The Kaska Dena Council and the Taku River Tlingit First Nation filed lawsuits as a result that year.
The Yukon government at the time said the next step was to work “with First Nations and industry on setting revised thresholds for Class 1 notification that will apply across all of Yukon by the summer 2015 field season.”
A spokesperson for the Department of Energy, Mines, and Resources confirmed on Thursday the government signed an agreement with several First Nations in the summer of 2015, including the Tr’ondek Hwech’in.
That agreement created a working group that was tasked with coming up with recommendations.
“The working group developed a work plan to advance shared mining priorities including class 1 notification and threshold amendments,” spokesperson Sue Thomas told the News.
“Discussions are continuing with First Nations and industry to resolve concerns related to mineral activities on settlement land and commissioner’s land.”
The government, she added, is committed to clarifying the notification requirement for mineral activities throughout the territory.
But because the case is before the court, there won’t be any further comment.
In January of this year the government signed a resource agreement with the Kaska Nation that lays out the process to reach further agreements related to specific resource sectors.
In its statement of claim the Tr’ondek Hwech’in First Nation claims the government has to consult it as per its final agreement.
Final agreements define which part of a First Nation’s traditional territory is settlement land and non-settlement land.
But part of the non-settlement land is under the Class 1 category which requires notification to the First Nation.
The Tr’ondek are seeking that the government consult them for activities on settlement land outside the Class 1 category.
“The Government of Yukon has engaged, and continues to engage, in conduct that may adversely affect the rights of the Tr’ondek Hwech’in under the Agreement by allowing mining exploration activities within the lands in question,” the lawsuit reads.
The First Nation claims the government’s failure to consult is a breach of the honour of the Crown.
-with files from Ashley Joannou and Maura Forrest.
Contact Pierre Chauvin at email@example.com