The Yukon government says it’s surprised the Tr’ondek Hwech’in First Nation is suing over the lack of consultation for mineral exploration on its traditional territory.
But for Tr’ondek Hwech’in Chief Roberta Joseph, discussions with the territorial government over the last decade were largely fruitless, and going to court became necessary.
“We’ve been waiting for over 10 years for legislation to be amended on the issue,” Joseph told the News Thursday.
“For many years we’ve put a lot of time and effort and money into these discussions and were not able to get anywhere.”
Discussions began in 2004. But last June, the First Nation filed a statement of claim in Yukon Supreme Court, arguing they hadn’t been consulted over mineral exploration since 2003 on non-settlement traditional land.
“It’s unfortunate it has to go through this process, it’s not something we want to do,” Joseph said about starting the legal action.
“But it’s something we have to do in order to ensure our agreements are honoured.”
In its lawsuit the First Nation seeks to extend a 2012 Yukon Court of Appeal decision that ruled the Yukon government had a duty to consult the Ross River Dena Council over any mineral exploration on their traditional territory.
That includes the lowest level of exploration known as Class 1, which includes 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 to 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 entails still haven’t been worked out.
The new regime was extended to settlement lands 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 to non-settlement 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 rules be extended to them following the Ross River decision.
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. In 2015, the Yukon government reached an agreement with the Kaska Nation on resource-specific sectors such as mining and logging.
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.”
That summer the government set up a working group to develop recommendations on mining-related issues.
Joseph insists the First Nation is not opposed to mining or economic development, but wants its rights respected.
“We don’t have any concerns with the mining industry in our traditional territory,” she said.
There are more mining activities happening on the Tr’ondek Hwech’in traditional territory compared to other Yukon First Nations, she noted.
“We do have many citizens who are miners,” she said. “It has really helped our economy grow.”
The legal action comes in a context of other First Nations suing the territorial government over consultation, as in the Peel watershed lawsuit.
For the past several months Premier Darrell Pasloski has often talked about reconciliation – from hockey games to the Truth and Reconciliation Commission of Canada report.
The News requested an interview with the Premier to ask if his view of reconciliation includes court battles over issues that haven’t moved much in 10 years.
In an email, cabinet spokesperson Michael Edwards wrote that Pasloski would not comment on a matter before the courts.
“We are very surprised that Tr’ondek Hwech’in has chosen to go to court rather than pursue a solution through the protocol agreement,” he wrote.
With a territorial election looming, Joseph said future governments could avoid legal challenges by working more closely with First Nations.
-with files from Maura Forrest and Ashley Joannou
Contact Pierre Chauvin at
pierre.chauvin@yukon-news.com