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.