Another challenge to the “free entry” policy of staking mineral claims in the Yukon has been launched by the Tr’ondek Hwech’in of Dawson City.
In documents filed recently in the Yukon Supreme Court, the First Nation argues the Yukon government has a duty to consult the Tr’ondek Hwech’in before allowing any low-level exploration work inside its traditonal territory, and not just on its settlement lands.
The Tr’ondek Hwech’in is seeking a declaration from the court that the duty to consult prior to exploration activity does exist.
It’s also seeking an order from the court instructing the Yukon government to notify, consult and accommodate the First Nation prior to permitting exploration activity, including the staking of claims.
The Tr’ondek Hwech’in is the first Yukon First Nation with an aboriginal land claim settlement to file such a challenge.
The Ross River Dena Council, one of three Yukon First Nation without a modern-day treaty, successfully challenged the free entry system in a lawsuit back in 2012.
Prior to the Ross River challenge, individuals and companies could stake mineral claims anywhere in Ross River’s traditional territory without telling anybody but the mining recorder.
Once a claim was staked, individuals and companies had the right to conduct low-level, Class 1 exploration activity without pulling any permits, and without telling anybody.
The Ross River Kaska successfully argued any exploration work whatsoever could potentially infringe on their unsurrendered aboriginal rights and title to their traditional territory.
As a result, the Yukon government in 2013 revamped its policy for staking claims and conducting Class 1 exploration activity.
It implemented a notification process in four major areas in the Yukon where there are still claims of unsurrendered aboriginal rights and title.
It also implemented a notification policy for all settlement lands held by the 11 Yukon First Nations with final claim agreements.
The Tr’ondek Hwech’in is arguing there is an obligation to consult the First Nation prior to permitting any claims to be staked or low-level exploration activity anywhere in its traditional territory, and not just on its settlements lands.
The 3,000 square kilometres of Tr’ondek Hwech’in settlement land account for a fraction of its traditional territory, though an exact percentage was unavailable this morning.
In keeping with the honour of the Crown and the duty to consult, principles of law established by the Supreme Court of Canada, the Yukon government has a duty to notify, consult and accommodate the Tr’ondek Hwech’in, the First Nation argues.
In a 2010 decision involving the Little Salmon-Carmacks First Nation and the Yukon government, the highest court in the country said the duty to consult is embedded in the honour of the Crown, the honour governments must uphold when dealing with First Nations.
The Supreme Court said the honour of the Crown exists even outside the terms agreed to in a modern-day treaty.
“The Treaty was not intended to be a “complete code,” says the decision in the LittleSalmon-Carmacks case.
“The duty to consult is derived from the honour of the Crown which applies independently of the expressed or implied intention of the parties to the Treaty.”
As a result of the Ross River case, a moratorium on staking mineral claims inside the Ross River area was implemented in 2013 to allow the First Nation and the Yukon government time to come up with a satisfactory method of fullfilling the duty to consult.
The moratorium remains in effect today.