The Government of Yukon is seeking feedback until July 31 on proposed amendments to the Canadian territory's "Quartz Mining Act, Placer Mining Act" and appropriate regulations. The proposed changes reflect Yukon officials' response to a court ruling in December and are intended to support positive relationships among First Nations and the exploration and mining industries. Amendments to the legislation must be in force by Dec. 27, 2013 to meet the one-year timeline imposed by the Court of Appeal for Yukon for implementing the court's decision.

"We are consulting on measures aimed at ensuring that Class 1 exploration activities are carried out responsibly," said Minister Brad Cathers of Yukon's Energy, Mines and Resources department in announcing completion of the draft proposals. "First Nations and other land users have expressed interest in more information on Class 1 activities, and a recent court decision also has confirmed Yukon's requirements to consult on mining exploration activities at a Class 1 level with non-settled First Nations, to the extent those activities may adversely affect Aboriginal rights."

Duty to consult

In "Ross River Dena Council v. Government of Yukon," the Court of Appeal ruled Dec. 27, 2012 that the Yukon government must follow the same guidelines in its "open entry" registration system for quartz mineral claims as those required of the Canadian federal government to consult with First Nations.

The Ross River Dena Council is one of three Yukon First Nations that have not entered into a final agreement with the governments of Yukon and Canada regarding their claims to Aboriginal title and rights. A member of the larger Kaska First Nation, the Ross River Dena Council's traditional area extends over 63,000 square kilometers (24,318 square miles), or roughly 13 percent of the Yukon.

The other Kaska group, the Liard First Nation, and the White River First Nation in southwestern Yukon also have not finalized agreements regarding claims to Aboriginal title and rights. Eleven other Yukon First Nations have final agreements in place with both the Yukon government and the Crown.

The lawsuit by the Ross River Dena challenged Yukon's open-entry staking system and the government's right to register mining claims without consulting affected First Nations. Under Yukon's Quartz Mining Act, an individual can acquire mineral rights by physically staking a claim and then recording it with the Mining Recorder. Once recorded, a claim gives its owner rights to the minerals within its boundaries and the right to carry out Class 1 exploration activities on the land without further authorization or notice to the Yukon government.

The Ross River Dena argued that the system allows activities that infringe on its Aboriginal rights and that principles adhered in a 2004 case, "Haida Nation v. British Columbia (Minister of Forests)," require the Yukon government to consult with the First Nation before recording quartz mining claims within the Ross River area.

The Yukon Territory Supreme Court ruled in 2011 that the Yukon government must give notice to the First Nation after new mining claims have been registered.

The Ross River Dena appealed, asserting that consultation must take place before mineral claims are recorded and that consultation requires more than mere notice of new claims.

The Yukon government argued that the granting of a mineral claim is automatic rather than discretionary when statutory requirements are met and thus, there is no duty to consult.

Moreover, mineral exploration activities in the Yukon, in general, are subject to assessment under the Yukon Environmental and Socio-Economic Assessment Act. Section 74(2) of this regulation includes a requirement for consultation with First Nations. Certain exploration activities, however, corresponding to those that fall under Class 1 exploration activities are exempted from assessment, meaning they can take place without notice to or consultation with the First Nations with claims that may be affected by them.

The Court of Appeal agreed with the plaintiff, noting in its decision that "in order for the 'government' to meet its obligations, it must develop a regime that provides for consultation commensurate with the nature and strength of the Aboriginal rights or title claim and with the extent to which proposed activities may interfere with claimed Aboriginal interests.

"The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of a First Nation can be reconciled with the Crown's right to manage resources. Statutory regimes that do not allow for consultation and fail to (provide) any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist," wrote the Hon. Justice J.A Groberman on behalf of the appeals court.

Issues of concern

Class 1 programs are small-scale mineral exploration activities that generally have minimal impact on the environment. Currently, prospectors undertaking these activities on mineral claims are not required to inform the government of their work. Class 1 activities include limited clearing of land, construction of lines, corridors and temporary trails, the use of explosives and the removal of subsurface rock and other specified activities.

In a seven-page discussion paper posted online in June, the Yukon government said increased levels of mineral exploration in recent years have highlighted concerns about the lack of information around Class 1 exploration programs and Class 1 placer land use operations (Class 1 programs). The ongoing development of regional land use plans also has identified the need to review how government manages these types of activities and how the current regulatory system may need modification.

"Yukon is also aware of its obligations to work with Yukon First Nations - including those that have entered into Yukon First Nation Final Agreements and those that have not yet settled land claims - and mineral rights holders," officials wrote.

Yukon is proposing to amend the regulatory regime affecting Class 1 programs as set out in the territory's mining legislation. Amendments to the laws must be in force by Dec. 27 to meet the timeline imposed by the Court of Appeal for implementing its declaration.

The proposed amendments establish a system for the mineral exploration industry to notify the Yukon government of Class 1 programs before undertaking work on mineral claims, and for government to ensure that these programs are carried out in a responsible manner, respectful of asserted Aboriginal rights. The discussion paper outlines the changes that are proposed to the legislation.

Strengthening regulations

Yukon officials say the changes will assist the government in meeting its legal obligations resulting from the court decision.

The proposed amendments also enable the Yukon government to establish additional operating conditions in areas with special environmental or socio-economic concerns.

These identified areas could include Category B Settlement Lands or designated areas identified in land-use planning.

"We will continue our work in ensuring a solid regulatory regime that provides certainty and supports the strengthening of relationships among First Nations and the mining industry," said Cathers.

The Mineral Resources branch of the Yukon government is consulting with the public on the draft amendments through July 31. The proposed amendments and discussion documents can be accessed at http://www.emr.gov.yk.ca/mining/class_1_exploration_consultation.html.

To provide comments, for more information, or to request a meeting, contact Yukon's Mineral Resources branch at: Email: [email protected]; phone: 867.667.3422; fax: 867.456.3889. Or write: Yukon Energy, Mines and Resources, Mineral Resources Branch, Suite 300, 211 Main Street, Whitehorse, Yukon Y1A 2B2.