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Yukon's court ruling on free-entry mining could help Idle No More

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Ross River, Yukon. Photo: Geoff Fandrick/Flickr

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On December 27 this past year, the appeals court of the Yukon Territory gave an important ruling regarding the rights of First Nations in relation to Yukon's free-entry mining policy. The plaintiff in the case, the Ross River Dena Council tribe, considers that Yukon's government cannot allow quartz production on its territory without first consulting the Council. The Kaska nation, to which the Ross River Council belongs, owns more than 63,000 square km, which represents nearly 13 per cent of the entire Yukon Territory.

Just as does Quebec's Mining Act, based on free mining principles, Yukon's Quartz Mining Act allows any person (physical or moral) the right to claim a given territory of up to 1,500 square feet, but to record it only afterwards. This after-the-fact procedure is a mere administrative formality. To keep one's rights over the land, one just needs to demonstrate that more than $100 has been invested on the claimed territory.

A person, in most cases a mining company, which has claimed land may start exploration activities without giving any additional information to governments. However, since these activities entail transforming the land both environmentally and economically, the Ross River Dena Council considers that its ancestral rights take precedence over the Quartz Mining Act, voted in 2003, and that Yukon's government must consult First Nations before it can allow anyone to claim parcels of their land.

Justice Tysoe, Justice Groberman, and Justice Hinkson have ruled that "While Class 1 exploration programs are limited, they may still seriously impede or prevent the enjoyment of some Aboriginal rights in more than a transient or trivial manner." The appeals court goes on to conclude that "the [mining] regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected."

The impact of the court ruling in Quebec

The Plan Nord, instituted under Jean Charest's Liberals, is still developing under the government of Pauline Marois' Parti québécois (PQ). It remains silent regarding First Nations' territorial rights, notably in relation to ownership titles. Therefore, the news from the Yukon Court is likely to calm down some of its developmentalist urges. Since many First Nations have voiced their disapproval of the Plan Nord, the ruling could provide a sound basis to support their wishes to play a greater role in land management. Ghislain Picard, Chief of the First Nations Assembly, which unites the 43 Chiefs of the First Nations of Québec and Labrador (AFNQL), had actually refused to participate in the previous government's consultations. He considered that the process did "not yet adequately meet the expectations of all concerned First Nations." This is why he has convened the PQ to a Summit on territories and resources organized by the AFNQL, notably on issues related to the Plan Nord. The provincial government has responded favourably, leaving its stance on the wider subject unclear.

Many analysts, including Hugo Asselin, holding the Canada Research Chair in Aboriginal Forestry at the Université du Québec en Abitibi-Témiscamingue (UQAT), and Nicolas Houde, from the Université du Québec à Montréal (UQAM), consider that Quebec's First Nations are left behind in the current Plan Nord proposal. Whilst the PQ's intentions resemble those of the preceding government regarding the development of the North, the First Nations living on Quebec territory and distrustful of the Plan Nord's consequences will certainly use the Yukon's appeals court ruling. It will have an impact on the provincial and federal government's perception of the definition of First Nations land rights.

Amongst other demands, Idle No More movement refuses to let the federal government develop natural resources on their land without being consulted. Therefore, the First Nations' struggle seems to be joining forces with the movement against economic development based solely on extracting resources, be it in Yukon, in Quebec, or anywhere else across the country. They could use the court ruling to bring back the subject of nation-to-nation negotiations between the First Nations and provincial or federal governments. A new approach would bring welcome change in negotiating strategies and stop governments from trying first and foremost to divide and isolate First Nations. Whether in Canada, in Quebec, or in Yukon.

This article was written by Bertrand Schepper, a researcher with IRIS, a Montreal-based progressive think tank. 

Photo: Geoff Fandrick/Flickr

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