Yukon North Of Ordinary

News archive for December 28, 2012

Decision’s effects will be expansive: lawyer

A decision by the Yukon Court of Appeal will have huge implications for the mineral exploration industry in the Yukon, says Whitehorse lawyer Stephen Walsh.

By Chuck Tobin on December 28, 2012 at 3:55 pm

photo

Photo by Whitehorse Star

Mike Kokiw and Tom Ullyett

A decision by the Yukon Court of Appeal will have huge implications for the mineral exploration industry in the Yukon, says Whitehorse lawyer Stephen Walsh.

The Court of Appeal ruled the Yukon government has a legal obligation to consult with the Ross River Dena Council before mineral claims are staked in the Ross River area.

Notifying the First Nation after a claim has been staked does not satisfy the duty to consult as defined by the Supreme Court of Canada, the three judges of the appeal court agreed in the 15-page decision released Thursday.

“It’s a great decision,” said Walsh, who represented Ross River at the original trial last year and at the appeal hearing in Whitehorse earlier this year.

“The existing regime has to change.

“It’s a game changer,” Walsh said of the decision written by Justice Harvey Groberman and unanimously agreed to by Justice David Tysoe and Justice Christopher Hinkson.

Walsh noted the three judges have suspended the decision for a year to give the government time to figure things out.

But it means the system of staking mineral claims, registering them, and conducting level one exploration activity will have to change somehow to satisfy the duty to consult, he said.

Walsh said the decision obviously affects the entire 63,000 square kilometres described as the Ross River area.

But it most likely has direct implications for the Liard First Nation and the White River First Nation, which, like Ross River, does not have aboriginal land claim settlements, he explained.

Walsh said he suspects the decision will even have implications for the 11 Yukon First Nations which have signed aboriginal land claims and self-government agreements.

“If I was a lawyer for one of the settled First Nations, I would be looking at this decision very closely,” he said.

Under the current “free entry” system, anybody can stake a claim anywhere in the Yukon, and have it registered.

The holder of a claim – measuring 457 metres by 457 metres, or 20 hectares – automatically gains the rights to all minerals under the surface.

They also have the right to conduct mineral exploration, though permits for level two, three and four exploration work require an environmental review and approval.

Level one exploration work, which allows for a variety of activity including the use of explosives and the removal of trees, does not require a permit or any notification to the government, or the First Nation.

Walsh explained the method of recording claims and allowing level one exploration work all has to change in the Ross River area to satisfy the Court of Appeal decision.

The Ross River Dena Council filed a lawsuit against the Yukon government.

Ross River maintained that allowing claim staking and level one exploration work in their unsurrendered traditional territory without consultation was a violation of their aboriginal rights.

Justice Ron Veale of the Yukon Supreme Court ruled late last year that a duty to consult did indeed exist.

But Veale also ruled that duty could be fulfilled by the Yukon government by providing the First Nation with notification that claims had been staked inside its traditional territory, after the claims had been staked.

Consulting with the First Nation prior to staking a claim was both impractical and unworkable, the government argued.

The government and the Yukon Chamber of Mines maintained the mineral exploration industry requires secrecy and confidentiality for success.

Companies don’t want to announce where they plan to stake claims before they stake them, because that would open the door for everybody else to rush into the same area, they told Veale.

Ross River filed an appeal on Veale’ decision, arguing that notification of claims staked after they’re staked did not fulfill the duty to consult. The Yukon government also appeal, arguing that staking claims did not trigger a duty to consult.

Yesterday’s decision upholds Veale’s ruling that staking claims does create a duty to consult. But it overturns his finding that the duty can be fulfilled by notification after the claims are staked.

Mike Kokiw, the chamber’s executive director, emphasized this morning the decision only applies to the Ross River Dena Council.

It may apply to the Liard First Nation and the White River First Nation as the only other two First Nations without land claim settlement, he said.

Kokiw said it certainly does not apply to the traditional territories of the 11 First Nations with settlements.

The chamber, he said, has been working with the government since Veale released his decision to find a way to fulfill the duty to consult while maintaining the confidentiality the exploration industry depends on.

Kokiw said he is convinced they’ll have a solution in the next year, before the current system no longer applies for the Ross River area.

Walsh, on the other hand, said there is no question the decision applies to the Liard First Nation and the White River First Nation, as the other two First Nations without settlements.

And if you take this decision, and the Supreme Court of Canada decision on the Carmacks case involving a piece of agricultural land given out by the Yukon government, this decision could very well have an impact for the whole territory, he said.

In the Carmacks case, Walsh explained, the highest court in the country decided the presence of an aboriginal land claim settlement does not erase the duty to consult on traditional lands not titled to the First Nation through the settlement.

“For those First Nations with an interest in the Peel, I would be very surprised if they were not reviewing this.”

Walsh acknowledged with the Court of Appeal suspending the decision for the next year, the existing method of staking claims and conducting level one exploration work without notification can continue.

But industry and government should know that if all of a sudden there was a mad staking rush to get inside the door before the rules change, the Kaska are not without remedies to deal with that, Walsh cautioned.

The government has 30 days to decide whether it will ask the Supreme Court of Canada to review the Court of Appeal decision, though the high court is under no obligation to hear an appeal.

Because of the emergence in the last few decades of new law surrounding aboriginal rights and title, the Supreme Court of Canada seemed more open to hear cases involving aboriginal rights, Walsh agreed.

He said that trend seems to be changing, as recently he was most surprised when the Supreme Court refused to hear a couple of cases he thought were a shoe-in.

Tom Ullyett, the assistant deputy minister of Justice, said Thursday the government will be conducting a full analysis before deciding what to do.

It does appear the existing system for staking and recording mineral claims in the Ross River area will have to change, he said.

Ullyett said it is a significant decision because it is a Court of Appeal decision, and deals with aboriginal rights.

It’s not unusual for the court to suspend its decisions when it feels the government will need time to implement policy or legislative changes to comply with the decision, he explained.

The government, said Ullyett, will be moving with all dispatch to determine how it will continue working with the Ross River Dena Council to fulfill its duty to consult.

Walsh said satisfying the duty to consult, as noted by the Court of Appeal, may mean the government and the Dena council coming to some sort of arrangement about which areas within the 63,000 square kilometres are open for mineral exploration.

The First Nation, he said, is not opposed to exploration and mining.

But it does want a say on what happens on its traditional lands, Walsh insisted.

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Dec 28, 2012 at 5:57 pm

Kokiw is very bold to interpret this decision to exclude signed FN’s and to suggest it will create a staking rush is hogwash, typical of the CoM. All issues would be easily managed in the application process.
FN’s want say and should have it…..better partners in the field than adversaries in the courtroom.

Time for industry to grow up.

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