Photo by Whitehorse Star
Photo by Whitehorse Star
Yukoners should pay close attention as land use planning goes forward in the future, says the executive director of the Yukon Chamber of Mines.
With Friday’s Supreme Court of Canada decision, the amount of land unavailable to pursue mineral exploration in the territory is now up over 50 per cent, he pointed out.
Samson Hartland said today the mining industry is very competitive around the world, and investment dollars are already tight to come by.
The Yukon needs to be careful it doesn’t push itself out of that marketplace by closing the door on the industry, he suggested during an interview.
He said with several more regional land use plans still to be hashed out – Dawson City, Mayo, Whitehorse, Teslin – it’s certain there will be more land withdrawals.
Land withdrawals, Hartland said, are the number one concern for the mining sector, and the industry pays attention to them.
“The trajectory that we are on is highly disconcerting not only to our jurisdiction but in the eyes of PDAC (Prospectors and Developers Association of Canada) and MAC (Mining Association of Canada) when it comes to competitiveness,” he said.
“Land withdrawal is the number one challenge from the perspective of the mining industry today.”
Hartland said future regional planning must be evidence-based, using scientific, biological and socio-economic factors that include mineral potential.
“We want to make sure land withdrawals are based on sound evidence at the conclusion of a robust policy process,” he said.
“I think it is clear to say we have learned a lot of lessons through the Peel process that can be employed for future land use plans.”
Hartland said it’s hard to share in everybody’s excitement over Friday’s decision when you see the future of the mining industry slipping away in the territory.
The Supreme Court of Canada decision is sending the parties back to the planning table, to the point where the Yukon government conducts consultations on the final land use plan recommended by the Peel planning commission.
The final plan calls for 80 per cent wilderness protection across the 68,000 square kilometres that make up the Peel River watershed region, with no roads nor railways, and no surface access through the 80 per cent.
The court also ruled that at this stage of the process, rejection of the plan is no longer an option available to the Yukon government.
“Given that modifications are, by definition, minor or partial changes, Yukon cannot “modify” a Final Recommended Plan so significantly as to effectively reject it,” the high court ruled.
The entire Peel watershed represents 14 per cent of the Yukon’s total land mass. The area designated as wilderness protection represents 11 per cent of the Yukon.
Hartland said there is certainly a possibility of legal action from companies with legitimate mineral claims inside the area designated as wilderness protection, for what he described as de facto expropriation.
Companies, he said, spent significant time and money staking those claims for legitimate interests.
Hartland likened it to a business setting up shop on a city street, having purchased a business licence and having already hung out the business sign.
Then, suddenly, the city tells the business it’s closing the street to traffic and there will be no parking allowed, he said.
Hartland said it could be argued that providing wilderness protection with no surface access to most of the Peel amounts to expropriation of thousands of minerals claims.
For the First Nations and two environmental organizations which challenged the decision by the former Yukon Party government to throw out the final land use plan recommended by the planning commission, Friday’s decision was monumental.
It was met with joy and elation.
Premier Sandy Silver described the decision as a stepping-stone into a new future for the territory.
He said his government wants to get on with the final round of consultation wrapping up the land use plan as quickly as possible.
It’s his intent to meet with the affected First Nations to chart a course at the earliest time possible, he told a press conference Friday afternoon.
The Liberals committed to implementing the final land use plan as part of its election platform last year.
Justice Minister Tracy-Anne McPhee said it’s still important to conduct the final round of consultation because it’s been five years since the land use plan was recommended.
The Supreme Court has also instructed the parties to carry out the last round of consultation, she emphasized.
She pointed out the Umbrella Final Agreement requires that there be consultation on the final recommended plan.
After receiving the initial recommendation from the planning commission back in 2009, the former Yukon Party government was in a position to accept, reject or modify the plan before sending it back to the commission for a second look.
It recommended more thought be given to creating a greater balance between wilderness protection and future economic development opportunities, as well as suggesting more thought should be given to surface access.
There was, however, nothing specific.
After considering the government’s feedback on the initial recommendation, the planning commission returned the same land use plan in its final recommendation – 80 per cent wilderness protection, no surface access.
The government threw out the recommendation and replaced it with its own plan. That called for 29 per cent wilderness protection with 71 per cent remaining open to economic development interests.
It relied heavily, and argued in court, that it had the right to throw out the plan under the provision of the land claim agreements that allowed it to accept, reject or modify the commission’s initial and final recommended plan, as 97 per cent of the Peel was territorial Crown land.
“By ultimately making these changes to the Final Recommended Plan after failing to present them to the Commission in sufficient detail, Yukon thwarted the land use plan approval process,” says the decision by the high court.
The Supreme Court of the Yukon, the Yukon Court of Appeal and now the Supreme Court of Canada all found the government’s decision to throw out the commission’s final recommendation was unbecoming.
The Supreme Court of the Yukon and the Court of Appeal came up with different remedies to correct the matter, which is how the case ended up in Ottawa for the Supreme Court of Canada to sort out.
“Yukon’s changes to the Final Recommended Plan did not respect the land use planning process in the Final Agreements and its conduct was not becoming of the honour of the Crown,” says the 39-page Supreme Court decision.
The Yukon Party released a statement Friday saying it now understands that mistakes were made during the planning process.
The government has said Yukon taxpayers have spent $449,000 on legal bills in the case.
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