Whitehorse Daily Star

Tr’ondëk Hwëch’in, Yukon government narrowly avoid court

The Tr’ondëk Hwëch’in and the Yukon government have agreed

By Chuck Tobin on March 16, 2017

The Tr’ondëk Hwëch’in and the Yukon government have agreed to work together to define which mineral exploration activities will trigger the duty to consult the First Nation.

The memorandum of understanding was announced Monday, in advance of the Yukon Supreme Court trial that was scheduled to begin today.

Under the arrangement, the government has agreed it has a duty to consult the Tr’ondëk Hwëch’in of Dawson City before allowing exploration activity to take place inside it’s traditional territory.

Determining what level of activity should trigger the duty to consult is a matter the parties will attempt to establish over the next year, in collaboration with the other 10 self-governing Yukon First Nations who have land claim agreements, says the memorandum.

While the parties work to define what level of activity should trigger the duty, the court order declaring the government has a duty to consult before allowing exploration activity will remain on hold until Feb. 23, 2018.

The Tr’ondëk Hwëch’in filed it’s lawsuit last year, arguing the duty to consult the First Nation before allowing exploration activity applied across its entire traditional territory, and not just on its settlement lands.

John Bailey, the Yukon’s assistant deputy minister of strategic initiatives, explained this morning the government will be approaching the other First Nations to see if they are interested the same arrangement it reaches with the Tr’ondëk Hwëch’in.

“We are pretty confident other First Nations are going to want to see this in their traditional territories,” he said. “We have had that interest addressed by some specifically.”

The issue over the duty to notify and consult arose out of a lawsuit filed in 2011 against the Yukon government by the Ross River Dena Council, one of three Yukon First Nations without a land claim settlement. Ross River argued before mineral claims could even be staked and recorded, there was a duty to notify and consult the First Nation. Justice Veale of the Yukon Supreme Court agreed, but ruled the duty could be fulfilled after the mineral claims were recorded.

Upon appeal, the Yukon Court of Appeal also agreed with Ross River that there was a duty to notify and consult the First Nation. The court overturned Veale’s finding that the duty could be fulfilled after mineral claims were staked, and ruled it must be done before claims are recorded. The superior court also ruled the duty to consult before conducting any activity that could impact on aboriginal rights applied across the board.

As a result, the Yukon government revamped it’s mining legislation, to ensure it did consult before allowing exploration activities in areas where there were outstanding claims to aboriginal rights and title.

The Tr’ondëk Hwëch’in argued the Court of Appeal ruling requiring the duty to consult before allowing exploration activity also applied to their aboriginal rights on non-settlement land inside their traditional territory.

Under current legislation in areas that remain open to staking without any restrictions, such as on most parcels of non-settlement land within the traditional territories of the self-governing First Nations, companies can stake a mineral claim and have it recorded, with no requirement to consult. They can also conduct what is termed class one exploration activities without any permits, without telling anybody. Activities under class one allow for everything from collecting soil samples to digging big holes, cutting heli-pads and using explosives.

The memorandum of understanding reached yesterday commits the parties to establish a threshold on the type of class one activity that would trigger the duty to consult the First Nation – whether it be something simple like collecting soil samples or something more pronounced such as using explosives.

The assistant deputy minister explained the goal over the next 11 months is to establish what level of activity would trigger the duty to consult.

The intent is avoid plugging up the requirement to consult with the lowest, least impactful exploration activities, Bailey explained.

Steve Walsh, the lawyer representing the Tr’ondëk Hwëch’in in the case, said this morning he suspects establishing thresholds is not going to be easy, that coming up with a cookie-cutter approach to what triggers the duty won’t be straight forward.

What’s deemed to be a low level activity may not be of concern to the First Nation in one area, but in another area, perhaps a sacred area, it may very well be, he said.

A moratorium on staking mineral claims in the Ross River area was implemented in 2013, to allow the Yukon government and the Ross River Dena Council time to figure out how to fulfill the duty to consult before mineral claims are staked. The area remains under a moratorium. The moratorium was expanded in February to include the traditional territory of the Liard First Nation, another one of three Yukon First Nations without a land claim agreement.

Comments (11)

Up 0 Down 0

martin on Mar 22, 2017 at 7:20 pm

At Politico et al "Let's assume they were here 30k years..... still they didn't figure out how to invent the wheel. I wouldn't brag about it.

Up 7 Down 0

Duh on Mar 22, 2017 at 4:23 pm

Way back in elementary school we learned not to use the defined word in a definition. That definition of "traditional territory" boggles the mind and is typical of the loosey goosey wording of an agreement that was negotiated at the final hour which has had us in court ever since it was signed, trying to determine what the heck it means. Shabby work all around, but quite a growth industry for lawyers

Up 5 Down 2

Lucy-Anne on Mar 20, 2017 at 2:02 pm

"Traditional Territory" means, subject to a Yukon First Nation Final Agreement, with respect to each Yukon First Nation and each Yukon Indian Person enrolled in that Yukon First Nation's Final Agreement, the geographic area within the Yukon identified as that Yukon First Nation's Traditional Territory on the map referred to in 2.9.0. as defined by the Umbrella Final Agreement.

Up 26 Down 6

Been There on Mar 17, 2017 at 4:34 pm

The only certainty is this means more bureaucrats being hired by everybody and less money left over for health, for education, for housing, for seniors, for roads and any other public services. There is only so much pie out there.

Up 18 Down 6

Politico on Mar 17, 2017 at 1:56 pm

@Bonnie Do you have any evidence to back up the 30,000 year claim!
Most anthropologists agree the Yukon was settled 10 to 15 thousand years ago. Your point is valid just no need to stretch the truth that far.

Up 20 Down 5

ProScience Greenie on Mar 17, 2017 at 12:25 pm

Walsh and his team must be making a lot of money the last few years. Will the 5% carbon tax cover this? Hope so.
Less conflict and more certainty is good I guess but it comes with more bubble wrap and red tape when working in the bush even at the lowest levels which isn't cool.

More people need to take the time to read the UFA and supporting documents, existing land claim agreements and the who, where, when and how FN citizens pay taxes at the various levels. The documents might be a bit boring but having an understanding of them leads to a more informed discussion.

"DID YOUR ANCESTORS FROM 30,000+ YEARS AGO INHABIT THE YT" - will need solid DNA evidence to answer that but we do know for sure that at one point in time we all came out of Africa. The moose in the room is that we are all a lot more blended with DNA and getting more so than most like to admit. More harmony, less divisiveness by all is badly needed.

Up 30 Down 11

Wait a minute... on Mar 16, 2017 at 5:31 pm

If it is a "sacred area" then surely the First Nation would have included it in their settlement land. Seems to me that the UFA only means something when it's to the first nation's benefit. So much for the "certainty" that we were all promised. Wasn't that the trade-off at the time - lots of land, lots of cash, lots of rights, in exchange for, oh yeah, "certainty". And of course, this comment will bring accusations of racism, because we are not allowed to disagree with a FN position on anything any longer.

Up 12 Down 24

Bonnie on Mar 16, 2017 at 4:56 pm

Veto power? We're not AGAINST resource development, we're FOR notification and consultation.
Unemployment will sky rocket? We're fully participating partners, or would like to be, in resource development on OUR traditional territories. We're thriving and flourishing. We need to be included in decisions... DID YOUR ANCESTORS FROM 30,000+ YEARS AGO INHABIT THE YT?

Up 18 Down 15

jc on Mar 16, 2017 at 4:48 pm

Since the FN are demanding a say in who develops the land, it's time the developers (tax payers that is) to demand that the FN start contributing to the land like paying taxes and weening them off the dole. It's not fair that the non FN (that's not just whites by the way) should have to give so much and give up so much.

Up 46 Down 27

Nile on Mar 16, 2017 at 3:24 pm

So basically the Liberals have given FN veto power over what happens in the Yukon. This is a very sad day for Yukon. Expect unemployment to skyrocket.

Up 30 Down 15

DRUM on Mar 16, 2017 at 2:40 pm

What does traditional territory mean? Is this the whole of the Yukon or the land now owned by the /first Nations through the Land Claim Agreements. Does the government have to consult on every square inch of the Yukon? I just need a clear understanding.

Add your comments or reply via Twitter @whitehorsestar

In order to encourage thoughtful and responsible discussion, website comments will not be visible until a moderator approves them. Please add comments judiciously and refrain from maligning any individual or institution. Read about our user comment and privacy policies.

Your name and email address are required before your comment is posted. Otherwise, your comment will not be posted.