Whitehorse Daily Star

‘Free entry’ staking policy faces more court action

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.

By Chuck Tobin on July 6, 2016

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.

Comments (10)

Up 3 Down 0

BnR on Jul 12, 2016 at 4:36 pm

I'm guessing ol' Josey meant internment camp, not interment, but maybe he did mean interment, which would be a neat pun from Old Kranky.

Up 12 Down 1

Max Mack on Jul 12, 2016 at 12:34 pm

The courts have ruled that Class 1 exploration activities on "traditional lands" require "consultation" when a treaty is not in effect. In effect, they are giving veto power to First Nations. I believe the result of the court's ruling will be to effectively kill off independent, small scale exploration and prospecting on lands where treaties are not in effect.

The degree of environmental harm or damage to First Nations subsistence interests from small scale exploration activities is negligible. Meanwhile, there is huge potential for cronyism and corruption, as prospecting and preliminary exploration of substantial finds requires considerable secrecy.

If recent decisions by certain judges are a guide, the courts may very well decide in the FNs favour. These rulings make it clear that judicial activism is alive and well in the Yukon and at the SCoC.

Such rulings may actually have a perverse socioeconomic impact on FNs, as individuals and juniors may be less willing to incur the upfront, labour-intensive costs of prospecting and preliminary exploration with the added risks imposed by the so-called "duty to consult". FNs may effectively gain power but, ultimately, both FNs and Canadian society at large may be losers.

Up 14 Down 20

Barry Campbell on Jul 9, 2016 at 9:53 pm

I read in here, the Natives lost the area they lived in, Europeans and England won those wars a very long time ago, we took the country and Canada was born, now we are negotiating to hand our country back to the Natives ......... are we insane?

Up 10 Down 3

ProScience Greenie on Jul 8, 2016 at 10:55 pm

White man, Politico? Really, in this day and age, when more and more of us are the product of a mixed bag of ancestors from here, there and everywhere around the globe and getting more blended every generation. Isn't it time to move on from that unhealthy and divisive way of thinking just as MLK suggested we should?

Up 7 Down 7

Armchair lawyer on Jul 8, 2016 at 7:44 pm

Using caselaw or jurisprudence (I'm not sure which that's why I'm an armchair) I would point to the fairly recent decision near Williams Lake where loggers had to start not consulting but obtain consent of the First Nation on land that was in it's traditional operating area Chilchot'in(sic) vs B.C. government.This land was outside of their settlement land but was land that was in their traditional operating area. I would also think that the Tr'ondek Hewech'in would be quite concerned over the heap leech (using cyanide) mining proposal that has recently caused much cater-wauling about riches and jobs without consideration for the environment. Many don't want to hear the truth about the ecological Armageddons caused at the "Jungle Rum" mine Northern Territory and " Belknap" mine in Washington state which are rapped up in litigation to try and recover from the untold damage suffered in these areas.

Up 9 Down 15

Politico on Jul 7, 2016 at 10:02 pm

The problem with all these treaties we sign is this, White man always speak with forked tongue. We sign em, we break em

Up 15 Down 15

Josey Wales on Jul 7, 2016 at 8:21 am

To the outsider...indeed eh? A direct result of revisionist history this absolute quagmire we deal with.
Of course it's cousin political correctness and the minions of SJW's will ensure it never gets anything but worse.
I am surprised Justine has not mandated an apology from its regular citizens, the less important non natives, maybe herd us off to interment camps?
Outsider it is not "getting ridiculous"...it has been for a longtime.

Up 24 Down 28

mary laker on Jul 6, 2016 at 5:25 pm

The mining industry is out of control up here, starting with their 17 cents an ounce royalty. At least they are not allowed to blow things up with dynamite with no permits or permission anymore, but much more has to be done to bring mining in the Yukon in line with what should be their responsibilities toward people who live here, and the environment.

Up 24 Down 21

jc on Jul 6, 2016 at 5:20 pm

Perhaps it's time to take them off the dole and let them finance their own people, villages and Reserves. Even the hard working, tax paying immigrants that are coming here are questioning their attitude. If they want to be supported forever, it's time to stand aside so the non FN can make some money on mining to do it. Talk about the hand that bites.

Up 41 Down 21

outsider on Jul 6, 2016 at 2:54 pm

Pretty soon, we're going to need to ask permission just to hike down an old mining road. This is getting ridiculous. We are one country, we should be a team.

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