Photo by Whitehorse Star
Photo by Whitehorse Star
The Yukon Chamber of Mines is seeking a legal opinion regarding Premier Sandy Silver’s decision to withdraw a portion of Indigenous settlement land from mineral staking.
Samson Hartland, the chamber’s executive director, said this morning they’re seeking to understand whether the Yukon government has the legal right to do what it did on Thursday.
Energy, Mines and Resources Minister Ranj Pillai said this morning they have checked with their lawyers and they do have the right to withdraw the land they have identified.
It’s in the public good and it’s with the support of the 11 self-governing First Nations, he said.
Under the Umbrella Final Agreement (UFA), the foundation for land claim settlements in the territory, there are different categories of settlement land.
There is land known as category A land which gives First Nations ownership of the surface and subsurface, or whatever lies below the surface.
There is also category B land, which gives the First Nations title to the surface but not the subsurface, not what lies beneath. Ownership of category B land is described as having fee simple title, the same type of land title homeowners have to their property.
First Nations also selected site specific lands, or small parcels of lands that have been used forever for specific things like hunting and fishing, just like Helen’s Fish Camp on Lake Laberge.
Site specific lands call for fee simple title, or title to the surface only.
Under the UFA, lands other than category A lands were to remain open to staking mineral claims, and to have the right to mine those claims should the claims prove to be commercially viable.
As a result of the order-in-council (OIC) passed last Thursday by Silver and his cabinet, the right to stake claims on site specific land has been withdrawn. The withdrawal does not affect mineral claims already recorded.
Under the UFA, a total of 25,899 square kilometres of settlement land has been identified as category A, with First Nations having surface and subsurface ownership.
Another 15,539 square kilometres is category B land, or surface ownership only. There is also a total of 155 square kilometres of site specific lands which have surface ownership only.
Of that total, for instance, the Kwanlin Dün First Nation has 6.79 square kilometres of site specific land selections while the Carcross-Tagish First Nation has 7.5 square kilometres.
Hartland said he misspoke Thursday when he was contacted by a government official informing him of the order-in-council. He said he told the official the chamber was in support because it was in keeping with the chamber’s stated position of a few years ago.
Hartland told the Star today he was incorrect Thursday, and after checking the record, he noted that what the chamber supported, and still supports, is that companies notify affected First Nations of any intent to stake a claim on fee simple settlement land.
It did not support the withdrawal of those lands from staking mineral claims, he said.
Hartland said the amount of land affected by the OIC is relatively small at .06 per cent of the total land mass in the Yukon. And they are community lands that wouldn’t likely be sought after in any case, just like a company isn’t likely to stake a mineral claim under Helen’s Fish Camp, he said.
The point, said Hartland, is that there was no communication from Silver or his cabinet that they were going to do this. It begs the question whether there’s more to come, he said.
Hartland said they are seeking a legal opinion to determine whether this is a change to the UFA, because changes to the UFA – changes to the Constitution of Canada – need to be approved by the Yukon government, First Nations and Ottawa.
There’s no signature from Ottawa on Thursday’s OIC, he pointed out.
Hartland said they they are seeking a legal opinion about what this might mean if the government wants to withdraw staking on some of the larger parcels of category B land, known as R-blocks.
Pillai noted he’s had conversations with chamber representatives in the past and they’ve voiced their support for the withdrawal of staking on site specific land selections.
“We are doing it now because it is in the public good in our discussions with industry, in our discussions with First Nations,” he told the Star.
Pillai said their legal opinion says they have the ability to make changes to the UFA that are in the public good with the support of the 11 self-governing First Nations, even without Ottawa’s signature.
The government has no intention of withdrawing mineral staking on the larger R-blocks of category B land, he said.
He did note, however, the government is willing to discuss on a case-by-case basis the withdrawal of a specific sites inside a large R-block that were not selected initially by a First Nation as a site specific.
If there is an old trapper’s cabin inside an R-block that has been there since the beginning of time but was not selected initially, the government is prepared to sit down with the First Nation and discuss withdrawing staking on the specific site, Pillai said.
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