The Ross River Dena Council and the Yukon government are squaring off before a panel of three Court of Appeal judges this week.
At issue is mineral staking.
Last year, the First Nation asked the Yukon Supreme Court to confirm that the territory must consult with it before allowing miners to stake claims on its traditional territory.
The First Nation brought the issue to court because of the recent resurgence in mineral exploration in the territory, Stephen Walsh told the appeal court’s judges.
Walsh is the lawyer for the First Nation. He pointed out that save for a few parcels set aside for land claims negotiations, which failed in 2002, most of the council’s traditional territory has already been affected by mineral staking.
In November of 2011 Justice Ron Veale decided that the territory needs to consult with the aboriginal government, but not until after claims are staked.
Originally, both the First Nation and territorial government appealed that decision.
But within minutes of the appeal court’s hearing on Tuesday, it was noted that the territory has thrown out its cross-appeal.
In an effort to reconcile with the First Nation, the territory will accept Veale’s decision, although it still doesn’t believe there is a legal “duty to consult,” said Penelope Gawn, counsel for the Yukon.
The Ross River Dena Council is still defending its appeal on three points.
First, its believes the legal “duty to consult,” as defined by the Supreme Court of Canada, was not addressed thoroughly enough in the initial court case.
Second, it disagrees with Veale’s conclusion that consultation is only needed after miners stake a claim.
And finally, the council is appealing Veale’s interpretation of three agreements signed between the territory and the Kaska nations, which include the Ross River Dena Council and the Liard First Nation.
Those agreements all acknowledge that the Kaska groups maintain that they have rights and claim to their traditional territory.
One of the agreements, which was in effect from March 2003 until August 2005, even said that the territory would not agree to any significant dispositions of land or resource on the Kaska’s traditional territory without getting consent from the aboriginal groups first.
But Veale’s decision clearly states that while it has been recognized that the Kaska assert their rights and claims to that land, without a land claims agreement, they don’t actually have those rights.
In other words, the law recognizes the First Nations say they have rights to those lands, but they don’t actually have those rights, legally.
The issue raises the question: do the three unsigned Yukon First Nations still have aboriginal rights and title to their land? Or, when compared to the 11 self-governing Yukon First Nations that have signed land claims, do their rights amount to much?
Together, the Liard First Nation and Ross River Dena Council make up two of three Yukon First Nations without land claims. Together, their joined traditional territory encompasses nearly one quarter of the Yukon.
For the Ross River Dena Council, only a few sections of that land have been protected from free-entry staking because by territorial cabinet orders. Those protections were put in place because those lands were set aside during land claims negotiations. After six years, those negotiations failed in 2002.
In 2008, the territory extended that protection for five more years. It ends on March 31, 2013.
Because of the protection, those few parcels of land are now the only land left unaffected by mining in the Ross River Dena Council’s traditional territory, Walsh told the court on Tuesday. And because it hasn’t signed a land claims agreement, the First Nation faces a much bigger battle in getting mining companies to share their profits and jobs if mines do develop from all the staking.
The Court of Appeal hearing will continue today in Whitehorse. No date is set for the appeal court’s decision.
Contact Roxanne Stasyszyn at