Two Yukon First Nations are renewing calls for a regional land use plan to be completed before any new development on their traditional territories is considered, including a mineral exploration project right next door to Tombstone Territorial Park. 

Tr’ondëk Hwëch’in First Nation and the First Nation of Na-Cho Nyäk Dun recently sent letters to the Yukon Environmental and Socio-economic Assessment Board stating that approving the quartz exploration project, called Antimony Creek, without a land use plan for the Dawson region would violate their rights.

The board is in the midst of evaluating whether Ryanwood Exploration Inc., the Dawson City-based company behind the project, has provided enough information to develop the project without adversely affecting the environment. The assessment board is responsible for issuing recommendations to the Yukon and federal governments, which ultimately decide whether to greenlight a project.

Regional land use plans determine what can and cannot occur in a particular region, essentially balancing conservation values, First Nations’ rights and industrial pursuits. These plans are created by independent commissions and signed off on by the Yukon government and affected First Nations. Creating them is a requirement under the Umbrella Final Agreement, which was signed by 11 First Nations in 1990 and paved the way for their self-governance. However, most First Nations have been waiting decades for these plans.

Resource development in the absence of an approved land use plan “will negatively affect Tr’ondëk Hwëch’in rights under the Tr’ondëk Hwëch’in final agreement,” Tr’ondëk Hwëch’in’s Jan. 14 letter states. “This is unacceptable.”

Antimony Creek is on Tr’ondëk Hwëch’in and Na-Cho Nyäk Dun territory and about 2.5 kilometres away from Tombstone, the territory’s flagship park that boasts towering, jagged peaks and abundant wildlife. 

The project is in an area of great importance to Tr’ondëk Hwëch’in, whose citizens frequently harvest plants and wildlife for cultural and subsistence purposes. Traditional gravesites and heritage travelling routes are a short distance away from the project area. 

The proposed Antimony Creek project in Yukon’s Dawson region would be on Tr’ondëk Hwëch’in and Na-Cho Nyäk Dun territories and about 2.5 kilometres away from Tombstone Territorial Park, shown here. Photo: Peter Mather

According to the company’s April 2020 permit application, up to 300 holes will be drilled per year, with some burrowing 10,000 metres into the earth, to find what appears to be gold and silver deposits. The 10-year project involves the construction of an access road, a network of trails and a drill pad. The company is proposing up to 883 round-trip helicopter flights on an annual basis to transport workers and supplies. According to GeoYukon, a Yukon government mapping tool, the project area covers roughly 86 square kilometres.

Ryanwood Exploration Inc. didn’t return a request for comment. In its permit application, the company said First Nations haven’t been engaged, “but discussions will be conducted.”

According to a 2020 assessment board report, the company intends to regularly host discussions with affected First Nations “to ensure that this project does not adversely affect surrounding local and First Nations lands, culture and people.”

The Dawson Regional Planning Commission is in the process of developing a land use plan that will manage and monitor lands, waters and industry within the region — a roughly 40,000 square-kilometre area representing about 10 per cent of the territory’s land mass.

According to a Jan. 26 letter the commission sent to the assessment board, permitting development before the completion of a land use plan “may impact the commission’s ability to develop recommendations for the appropriate use of land, water and other renewable and non-renewable resources within the planning region.”

Sue Thomas, a spokesperson for Yukon’s Department of Energy, Mines and Resources, told The Narwhal in an email land use planning doesn’t negate tenure holders’ ability to develop their mineral claims.  

“Development and/or exploration projects, like any other industrial and non-industrial uses, are allowed to continue while the planning process is underway,” she said.

Miners may be racing to get permits before Dawson land use plan is completed

Allowing industry to explore in a region where land use planning is underway could rule out protecting areas with high conservation values, Sebastian Jones, wildlife and habitat analyst at the Yukon Conservation Society, told The Narwhal.

“It’s no secret that if projects like this can get permitted before the land use plan is in place, it will [predetermine] land use planning,” he said, adding that projects like Antimony Creek are designed to eventually result in a large mine.

Jones said miners likely recognize their days are numbered to develop claims in sensitive areas, which explains why they appear to be racing to get permits before land use plans are completed.

“It’s very likely that developing a mine will not be one of the approved activities in the project area,” he said.

If mineral deposits are located, several mines could crop up, leading to cumulative impacts on an otherwise undisturbed area, Jones said.

In a Jan. 8 letter to the assessment board, the Yukon Conservation Society recommended the project not proceed, saying access roads and the eventual building and operation of mines would cause cumulative impacts on the region.  

Antimony Creek falls within an area of significant cultural importance to Tr’ondëk Hwëch’in

The Antimony Creek project area is in a region that’s of very high cultural value to Tr’ondëk Hwëch’in citizens, according to the First Nation’s letter. The region, known as the “cultural integrity area,” which contains roughly 88 per cent of the Tr’ondëk Hwëch’in’s settlement land, provides critical habitat for caribou, moose, sheep and salmon. It is also home to mineral licks, rare plants and old-growth forests, all of which help sustain wildlife and, in turn, Tr’ondëk Hwëch’in harvesters.

“The whole ecosystem contributes to our lifestyle and our culture,” Chief Roberta Joseph told The Narwhal. “It’s not only about food value — it’s about ensuring our connection and our spirituality with the land, it’s about bonding and passing on traditional teachings through stories and teaching about harvesting.” 

The proposed Antimony Creek project is close to Tombstone Territorial Park, Yukon’s flagship park, which boasts towering, jagged peaks and abundant wildlife. The area is of great importance to Tr’ondëk Hwëch’in, whose citizens use the land for cultural and subsistence purposes.

There are also significant heritage sites in the area. The project is located about 300 metres away from a settlement land parcel that was originally selected to protect traditional gravesites, according to the letter. The letter suggests there are likely even more burial sites, as not all heritage areas have been mapped by the First Nation.

“It is concerning that there could be potential impacts on our ancestors who may have been buried in the area near the proposed application,” Joseph said. “There needs to be regard and consideration on the burials of our ancestors, wherever they’re buried throughout our traditional territory.” 

“It’s just a matter of ensuring that our heritage as First Nations people of this land, since millennia, is being respected in accordance to our final agreements and the spirit and intent of our final agreements.” 

The area is considered so important to Tr’ondëk Hwëch’in citizens because it has yet to be disturbed by industry, the letter states.

“Until a land use plan is in place that takes into account Tr’ondëk Hwëch’in rights under the final agreement, the cultural integrity area must remain intact in order for land and wildlife to thrive and for traditional pursuits to continue,” the letter states.

Na-Cho Nyäk Dun calls for a staking moratorium

Staking should be off-limits in the Dawson region until a land use plan is in place, according to a Jan. 20 letter Na-Cho Nyäk Dun sent to the assessment board.

The letter said completion of the plan is “an essential prerequisite of any further permitting in this area.” 

Chief Simon Mervyn didn’t reply to a return for comment.

According to the letter, land use planning helps facilitate development because it provides certainty “for all.”

“It will allow for Na-Cho Nyäk Dun, other Indigenous nations, public government and industry to make decisions together respecting priorities, values and criteria for development and minimize future land use conflicts by making clear where development can and cannot be pursued,” the letter states. “Most importantly, it will ensure that development respects and supports, rather than undermines, the Treaty Rights of Na-Cho Nyäk Dun.”

Ryanwood Exploration Inc. — which is based in Dawson City, shown here — is seeking approval for a quartz exploration project from the Yukon Environmental and Socio-economic Assessment Board. Photo: Peter Mather

Former vice-chair of the Dawson land use planning commission Art Webster also recently called for a halt on staking in the Dawson area.

“By allowing the staking of mineral claims, it basically sends out a message saying, ‘This is the highest value of this land, the extraction of minerals’ … at the expense of considering any other values for that land,” Art Webster told The Narwhal in an interview.

According to Na-Cho Nyäk Dun’s letter, the First Nation has been waiting for a completed land use plan in its traditional territory since it signed its final agreement 25 years ago. This would be separate from the Dawson land use plan.

While Na-Cho Nyäk Dun is not an official party to the land use planning process in the Dawson region, it has observer status, as its territory overlaps with that of the Tr’ondëk Hwëch’in. The nations have an agreement in place to settle possible disputes linked to overlapping traditional territories.

“In the view of Na-Cho Nyäk Dun, public government’s failure to initiate a land use planning process for the Na-Cho Nyäk Dun traditional territory is a fundamental breach of a key commitment enshrined in our treaty, and is flatly inconsistent with the honour of the Crown,” the letter states.

Antimony Creek is one of many mineral exploration project in Tr’ondëk Hwëch’in’s and Na-Cho Nyäk Dun traditional territories

The Antimony Creek project is only one mining application on Tr’ondëk Hwëch’in’s traditional territory, Joseph said.

“There are many of them every year,” she said.

A similar quartz exploration project, called Coal Creek (Monster) located roughly 85 kilometres north of Dawson City is making its way through the environmental assessment process. The Vancouver-based proponent, Go Metals, is searching for battery metals such as copper, gold and silver, according to the project proposal.

According to a letter Tr’ondëk Hwëch’in sent to the assessment board, the First Nation continues “to strongly oppose” any development in the northern reaches of its traditional territory, which is relatively intact and undisturbed wilderness.

Go Metals spokesperson, Scott Sheldon, told The Narwhal in an email, “We’re committed to continuing our conversations with local First Nations and we look forward to progress being made by the Dawson Regional Planning Commission to help us create better exploration plans for our battery metals project.”

The Coffee Gold project, a proposed hard rock mine in a remote corner of Yukon, is also on the traditional territories of Na-Cho Nyäk Dun and Tr’ondëk Hwëch’in. Yukoners can submit feedback on that project until March 26. If this proposal is approved, the mine would be the largest in Yukon’s history.

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Melaine Simba will never forget the months she spent inside her home on Ka’a’gee Tu First Nation, south of Yellowknife, with her windows tightly shut to prevent wildfire smoke from seeping in. It was the summer of 2014 and she was following public health orders to stay inside during the Northwest Territories’ worst wildfire season on record.

“There were fires all around us,” Simba told The Narwhal. “I couldn’t go outside, and I couldn’t take my son outside.”

“It was just so hard to breathe in that smoke with all the falling ash.”

According to a new study published in the journal BMJ Open, the wildfires caused extremely poor air quality during the more than two months of unrelenting smoke exposure. This led to a sharp increase in respiratory illnesses, with vulnerable populations, such as children and Indigenous people, disproportionately affected. 

The study also found that public health advisories asking people to stay inside during the wildfires were “inadequately protective,” possibly because people grew tired of the long period of isolation. With climate change contributing to longer and more intense wildfire seasons, the study authors say there’s an urgent need to be far more prepared in the future.

“A really big take home of this study is that climate change is bad, and it is going to get worse,” Courtney Howard, the lead author of the study and an emergency physician in Yellowknife, told The Narwhal, adding that smoke exposure levels during the wildfires were believed to be some of the worst ever studied globally.

“We are going to need new, proactive approaches as we go into a warmer, smokier state on this planet.”

Warmer temperatures caused by climate change can spur drier conditions, increasing the risk of wildfires. In 2014, moderate to severe drought conditions and lightning strikes were the catalyst for 385 fires that impacted 3.4 million hectares of forest in the Northwest Territories.

According to the federal government, temperatures across the North are warming more than twice as fast as the global rate. In Yellowknife, between 1943 and 2011, the annual average temperature in the city increased by 2.5 C. 

Particulate matter increased fivefold during the wildfires

The average level of particulate matter (PM 2.5) in the air was five times higher than normal during the 2014 wildfires, compared with the two previous years and 2015. PM 2.5 — inhalable particles less than 2.5 microns in diameter — is associated with a range of respiratory conditions.

The study found this increase in particulate matter was associated with an increase in visits to the hospital for asthma, pneumonia and chronic obstructive pulmonary disease. Asthma-related emergency room visits doubled, with the highest rates found in women, people older than 40 and Dene. Visits for pneumonia increased by 57 per cent, with men, children and Inuit particularly affected. And visits for chronic obstructive pulmonary disease increased by 11 per cent, with men, the Inuit and Dene populations and people over 60 showing the greatest risk. 

While the results suggest that Indigenous people were more affected, Howard said it’s difficult to say for sure because they may have been more likely to go to the ER due to lack of access to medical clinics. 

The demand for medicine that helps alleviate the symptoms of asthma surged, too. The dispensation of salbutamol, the agent found in puffers, increased by 48 per cent.

Yellowknife emergency physician Courtney Howard was lead author on a study on the health effects of the 2014 Yellowknife wildfires, published in the journal BMJ Open in February 2021. Photo: Pat Kane / The Narwhal

“In fact, one of the pharmacies ran out over the course of the summer,” Howard said. 

Supply chain problems “demonstrated a lack of resilience,” she added.

The study also sheds light on systemic issues that contribute to worse health outcomes in vulnerable populations, including Indigenous people.

“Climate-related health effects impact all populations but are likely to disproportionately affect communities living at the frontlines of rapid climate change, as well as those experiencing systemic racism, socioeconomic and health disparities, and/or the enduring effects of colonization,” the study states.

‘Some people were visibly traumatized by this event’

Protracted periods of isolation, a lack of exercise, fear and stress during the wildfires also had negative impacts on people’s mental health and way of life, according to a 2018 report that Howard was also involved with. 

“Livelihood and land-based activities were disrupted for some interviewees, which had negative consequences for mental, emotional and physical well-being,” the report states.

During the summer, Indigenous people across the territory fish, hunt and visit old villages and the gravesites of relatives, Jason Snaggs, the chief executive officer of Yellowknives Dene First Nation, told The Narwhal. The wildfires prevented people from taking part in these cultural activities, he added. 

“This leads to depression, and you have sort of a compounding effect, in terms of colonialism, the effects of residential schools, intergenerational trauma,” Snaggs said.

“Some people were visibly traumatized by this event.”

Sheltering in place can lead to increased rates of family violence, including violence against Indigenous women, Snaggs added.

The 2016 Fort McMurray wildfires might have caused similar increases of family violence, as is evidenced by the 300 per cent increase of calls to a local family crisis centre. Photo: Jason Woodhead / Flickr

During the 2016 wildfires that tore through Fort McMurray, Alta., calls to a local family crisis centre increased by upward of 300 per cent, according to Michele Taylor, executive director of Waypoints, an emergency shelter for women and children. 

Howard said the 2014 wildfires were a seminal event in people’s understanding of climate change in the region.

“At the time, ecological grief and eco-anxiety hadn’t really shown up in the evidence base,” she said. “Looking back at our analysis, I think we can easily apply those terms to what we found and say it was a trigger for ecological grief and anxiety for a lot of people.”

Communities need to prepare long before wildfire season 

Howard said communities — particularly Indigenous communities — need to be better equipped to withstand wildfires.

Some homes in Indigenous communities are overcrowded and aren’t built to the same standards as those elsewhere in the territory. Howard emphasized the need to address this problem first and foremost.

The BMJ study recommends governments install ventilation systems in old and new homes ahead of wildfire season. Doing so would ensure residents have access to clean air without having to leave the house. 

“Our infrastructure decisions need to be based on the temperature and precipitation patterns that we’re anticipating for the coming century as opposed to the ones we had in the last one,” Howard said.

Satellite imagery near Great Slave Lake shows the spread of wildfire smoke in the Northwest Territories during the 2014 wildfires. The centre of the photo shows a pyrocumulonimbus cloud, sometimes called fire clouds, which are an atmospheric phenomenon generated by extreme heat and rising smoke, usually from wildfire or volcano eruptions. Courtney Howard, lead author of a new study on the 2014 wildfires, says smoke exposure levels during that period were some of the worst ever studied. Photo: NASA Earth Observatory

The study also recommends primary health-care practitioners identify people who may grapple with respiratory illnesses and ensure that air filters and puffers are readily available prior to wildfire season.

“That will allow people to manage their symptoms at home and never get to the point where they’re stuck in the emergency department,” Howard said. “The sooner particularly vulnerable people have access [to air filters and puffers], the better.”

In 2014, the City of Yellowknife waived user fees for a multi-purpose recreation facility so residents could go there to breathe clean, filtered air and exercise, Howard said. But not everyone in Yellowknife is afforded the same level of access. N’Dilo, which is part of Yellowknives Dene First Nation and is located in Yellowknife proper, only has one space people can gather in during a wildfire — a 45-year-old gym that isn’t equipped with a filtration system to keep air clean.

The study suggests that public health practitioners use satellite-based smoke forecasting to determine whether clean air shelters are needed in advance of wildfire season and, if necessary, make more available. 

The 2018 report — which documented the experiences of 30 community members from Yellowknife, Dettah, N’Dilo and Kakisa who lived through the wildfires — found there was a consensus among participants about the need for improved communication and coordination at the community and territorial levels as wildfires intensify.

Howard said residents and health-care providers need to proactively prepare for wildfire season every year.

 “We need to be viewing wildfire season the same way we view cold and flu season.”

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Shipping traffic linked to Nunavut’s Mary River Mine has increased exponentially and the noise could be adversely affecting narwhals, according to a new study.

The study, conducted by the Scripps Institution of Oceanography in San Diego, found shipping in Milne Inlet increased 583 per cent between 2015 and 2019. In 2015, there were 40 project-related transits in the region; four years later, there were 243.

“That increase is probably on par with some of the most rapid increases in commercial shipping on the planet,” Joshua Jones, the author of the study and an oceanographer at the institution, told The Narwhal. “The noise from ships can overlap with or make it more difficult to hear sounds that the animals themselves produce to communicate with each other or use to navigate within their environment.”

And there could be even more shipping traffic on the horizon.

Baffinland is hoping to double the amount of iron ore it ships from its Mary River Mine under a proposal that’s being reviewed by the Nunavut Impact Review Board. Photo: Oceans North

Baffinland, which opened the Mary River Mine on Baffin Island in 2014, is now looking to double its capacity under a second phase of development, which is under review by the Nunavut Impact Review Board. Under Phase 2, Baffinland is proposing 176 voyages (or 352 project-related transits) for ore carriers between July and November each year.

Baffinland is currently permitted to ship six million tonnes of iron ore from its port on Milne Inlet, just west of the community of Pond Inlet, located on Eclipse Sound. The company wants to produce 12 million tonnes of iron ore per year and construct a 110-kilometre railway to move that ore from mine to port (it currently uses a tote road for that purpose).

The proposed increase in shipping in the area “raises alarms” because impacts on narwhal haven’t been studied enough, said Christopher Debicki, vice-president of policy development and counsel for Oceans North, a charity that helped fund the Scripps study.

“It’s grossly premature to come before an impact review board and propose to double or, as we suspect, triple shipping volumes out of this region,” he said.

Oceans North submitted the study to the review board on Jan. 18, ahead of public hearings into the expansion project. 

Inuit hunters oppose plan, say narwhals are already suffering

Inuit hunters, who call themselves Nuluujaat Land Guardians, say Baffinland’s proposed expansion project will severely impact animals they rely on for subsistence, including narwhals, Clyde River Mayor Jerry Natanine told The Narwhal.

“Right now, we’re saying that the expansion project should not go ahead,” he said. “Considering the mine is already affecting the area too much, we have to figure out how to make sure there’s less effect, less noise in the area, so that the whales can come back and so that people can continue their traditional practices.”

On Feb. 4, two days before the public hearings adjourned until April, Inuit hunters blocked a tote road and airstrip at the mine, holding their ground for one week until a temporary injunction was issued. As reported by Nunatsiaq News, Baffinland estimated the blockade cost it $14 million.

Natanine said Inuit have been raising concerns about narwhals for years, adding the whales are increasingly exhibiting signs of ill health. He believes high volumes of shipping traffic are to blame.

“Hunters that caught some narwhals said they were so stressed that they hardly had any blubber on them,” he said. “They were very skinny. Not even edible.”

Amanda Hanson Main, technical adviser for the Mittimatalik Hunters and Trappers Organization, which is based in Pond Inlet, Nunavut, told The Narwhal hunters are seeing fewer calving and tusking events in Milne Inlet. 

“They’re harder to hunt because they’re already stressed about the shipping,” she said.

As shipping traffic to the Mary River Mine increased, so too did narwhals’ cortisol levels, according to a recent study. Photo: Baffinland

A recent study, which is soon to be published in the journal Arctic Science, found that as shipping to and from the Mary River Mine increased, so too did the levels of cortisol in narwhal blubber. Between 2013 and 2019, when shipping significantly increased in the area, cortisol — a stress response hormone — more than doubled in narwhals compared to pre-mine years, according to the study.

However, the study found there are several factors at play.

“Increased vessel traffic, changing ice conditions, altered Arctic food webs, increased predation pressure from killer whales and cumulative impacts from these sources likely all contribute to increased stress levels for narwhals,” the authors conclude in the study, adding that there’s a need to continue monitoring the animals. 

Some Inuit organizations aren’t completely opposed to the company’s expansion plan as many Inuit are employed by the mine.

The Qikiqtani Inuit Association — the landlord of the Qikiqtaaluk Region, which allows Baffinland to operate there through a commercial lease — signed an Inuit Certainty Agreement with the company on June 16. The agreement puts forward certain benefits such as Inuit employment and environmental monitoring efforts throughout the mine’s 21-year life. 

Noise from ships may affect narwhal behaviour and communication: study 

In 2016, as part of the Scripps study, Jones placed two underwater microphones in Eclipse Sound to determine how the soundscape changes when ships pass over it and how that may affect marine mammals, including narwhals and ringed seals, both of which are harvested by Inuit for subsistence. 

To do that, he looked at the frequencies narwhals and ringed seals use for communication and compared them with noises emitted by ships.

The study found that vessel noise can affect both mammals depending on how close they are to the ships. As ships get close to narwhals, they emit noises at frequencies that start to interfere or “overlap” with the high-pitched noises narwhals use to communicate and navigate. “If they get close enough, they emit sounds that are loud enough that they could be causing behavioural disturbance in narwhals,” Jones said.

The farther away a ship is from an animal, the lower the pitch of sound it produces. When the noise reaches a lower decibel level, it can impede communication patterns of ringed seals, which make deep barks and grunts.

Vessel traffic in Milne Inlet increased 583 per cent between 2015 and 2019 — on par with some of the most rapid increases in commercial shipping in the world — making it an important place to study impacts on narwhals. Photo: Baffinland

Ship noise can impact narwhals and ringed seals when vessels are within a few kilometres to more than 30 kilometres away, Jones said.

Jones found that some ships are noisier than others. The loudest sounds came from fuel and chemical tankers, along with an ice breaker the mine uses to chart a course through the sea ice as it begins to melt. (Shipping occurs between mid-July and late October, when there is the least ice present.) 

Jones emphasized that the overlap of ship and marine mammal frequencies is predicated on a lot of guesswork and more research is needed to fully understand the extent of disturbances. 

One of the key limitations, he said, is that they don’t have a measurement for narwhal hearing.

“There is no hearing test in the world for narwhal, so we’re stuck with some guesses.”

However, there’s no denying the sheer volume of ships in Eclipse Sound is “remarkable,” Jones said.

“It probably makes Eclipse Sound and Milne Inlet one of the most important areas in the world to try to understand the effects of changing shipping traffic on marine mammals because that change is happening so rapidly,” he said.  

Heather Smiles, manager of stakeholder relations with Baffinland, told The Narwhal the company “has some of the most extensive and conservative mitigations for shipping in Canada, and certainty in the Arctic.”

According to a presentation Baffinland submitted to the public hearing, there’s no potential for temporary or permanent acoustic injury on marine mammals.

The report states “multiple lines of evidence indicate narwhals will be disturbed by vessel-based sound,” but those effects are “short term and localized.” 

To mitigate possible disturbance, the company intends to implement speed restrictions and limit the number of transits in heavy ice, according to the document.

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Canada is ordering the Yukon government to re-evaluate a proposed open-pit and underground mine after finding the territory failed to exercise due diligence when assessing the project and its impact on First Nations’ Rights.

In October, the executive committee of the Yukon Environmental and Socio-economic Assessment Board recommended the Kudz Ze Kayah mine, proposed for the Pelly Mountain range within the territory of the Liard First Nation and the Ross River Dena Council, proceed without a formal socio-economic and environmental assessment.

A Jan. 22 letter from Fisheries and Oceans Canada and Natural Resources Canada states the committee made that recommendation without sufficient explanation as to how First Nations’ Rights were considered and how mitigation measures would address the negative impacts of the project. 

The two federal departments are requesting the committee evaluate their assessment of the project, especially its significant adverse effects and impact on First Nations rights, via a formal referral for reconsideration.

“The written referral outlines additional information being sought and will provide an opportunity to further address First Nations’ perspectives and how potential impacts to Indigenous rights can be mitigated,” Austin Beaton, a spokesperson with Natural Resources Canada, told The Narwhal in an email.

“Canada has learned from experience that timely, meaningful consultation with Indigenous groups is an essential component of the decision-making process.”

Yukon Premier Sandy Silver told The Narwhal he is disturbed by the federal government’s move, which he called “unprecedented.”

“This recent decision undercuts our authority and it sends a troubling signal over who holds the pen on major projects like this,” he told The Narwhal.

In a 2003 devolution process, Ottawa delegated power to the Yukon government so the territory could, among other things, make its own resource management decisions.

“Devolution happened for a reason,” the premier said. “Local decisions should be made by local governments.”

Location of the Kudz Ze Kayah in southeastern Yukon. Map: Carol Linnitt / The Narwhal

Yukon assessment board ‘erred in law’: Chief

BMC Minerals, the Vancouver-based company behind the project, hopes to extract 1.8 million tonnes of zinc, 600,000 tonnes of copper and 350,000 tonnes of lead from the Kudz Ze Kayah mine over a 10-year lifespan, after which a 26-year closure and reclamation process will take place.

The federal government’s order comes on the heels of a letter from Stephen Charlie, Chief of Liard First Nation, which states the assessment board “erred in law” when recommending the project move ahead for government approval without a full review under the territory’s assessment act.

In its screening report for the project the executive committee acknowledged the mine would have “significant adverse effects” on water, traditional land use and wildlife and will contribute to the “likely decline” of the Finlayson caribou herd, a subsistence food resource for the Kaska Nation, comprised of five Dene-speaking First Nations spanning the Yukon and British Columbia border.

The Kaska nation’s traditional territory encompasses 24 million hectares — equivalent to the size of the state of Oregon — stretching across B.C., Yukon and the Northwest Territories. 

The project is located in the middle of the Finlayson herd’s winter habitat, where caribou calve and rut, and is also situated near the herd’s migration corridors.

The Kudz Ze Kayah mine is located within the Finlayson caribou herd range. Source: BMC Minerals. Map: Carol Linnitt / The Narwhal

The report noted caribou “habitat loss due to the mine’s footprint, including its open pit, waste storage facilities and [water management ponds], will be permanent and irreversible,” the report states. “Beyond direct reductions in habitat loss, the effectiveness of most mitigation measures at reducing habitat disturbance during operations is largely unknown.”

Charlie’s letter, addressed to Silver and Minister of Northern Affairs Dan Vandal argues that because the project would infringe on Kaska harvesting rights the mine should be outright rejected or subject to a panel review, the most stringent form of environmental assessment in Yukon. 

“The project, as currently proposed, should be rejected until it can be confidently demonstrated, based in scientific evidence and grounded in Kaska knowledge and ways of knowing, that Kaska Rights and Title will not be extinguished by this project,” Charlie wrote.

‘Significant knowledge gap’ around mine’s impact on caribou and effectiveness of mitigation measures

Allan Nixon, BMC’s vice-president of external affairs, told The Narwhal in an email the executive committee’s review “was professional, thorough and comprehensive,” adding that all parties had enough time to provide input “to guide the conclusions reached.”

The executive committee noted BMC had not completed a full assessment of caribou habitat loss associated with the project and suggested impacts could be much greater than the proponent anticipated.

“Effects to calving habitat and movement corridors are very likely, but models were not available to quantify effects,” the committee’s report states. “This is a significant knowledge gap.”

Despite the seemingly profound impacts on the caribou, the board argued these negative effects could be “eliminated, controlled or reduced” through mitigation measures carried out under a specific Kudz Ze Kayah management plan.

According to the committee, measures under that plan would include ongoing geotechnical studies, sustained water quality monitoring efforts and limiting speeds on mining access roads. The committee also recommended the Yukon government and affected First Nations develop a joint management plan for the Finlayson caribou herd informed by science and traditional knowledge.

“We thought that the management plan would mitigate any of the adverse effects to caribou,” Laura Cabott, executive committee member and chair of the assessment board, told The Narwhal. “It’s pretty extensive.” 

Charlie strongly disagreed, however, stating in his letter that the mitigation measures proposed are “unproven,” especially where caribou are concerned.

“There is no evidence they will effectively mitigate these adverse effects or prevent the continued decline and potential extirpation of the Finlayson caribou herd.”

“Predicted impacts on the Finlayson caribou herd threaten the continued viability of Kaska harvesting rights, which depend on a healthy and sustainable herd that has a harvestable surplus,” Charlie wrote.

Charlie did not respond to requests for comment.

According to premier Sandy Silver, the Yukon government has already conducted a “comprehensive review” of the Kudz Ze Kayah mine although he acknowledged more work can be done to consult with First Nations on the project. Photo: U.S. Department of Agriculture / Flickr

In a Jan. 25 statement, Silver said the Yukon government was poised to accept the assessment board’s recommendation and issue an approval of the mine.

Asked why the territorial government was ready to approve the project, Silver told The Narwhal the assessment process conducted by the Yukon environmental assessment board’s executive committee “resulted in a very comprehensive review.”

He also said the management plan developed between the committee and the company was sufficient.

“The system works,” he said. “The recommendations, you know, they’re onerous — they hit the boxes.”

The premier noted, however, that more engagement with First Nations is warranted.

“As a government, we definitely respect that much more consultation still has to happen,” he said.

Yukon has never completed a panel review of a mine

Charlie’s call for a full panel review of the Kudz Ze Kayah mine raises questions about how such a process would play out because no review of that kind has ever been completed on a mine in Yukon.

One panel review has been initiated but not completed for Casino Mining Corporation’s massive Casino Mine west of Carmacks, which would produce 8.9 million ounces of gold over roughly 22 years. The company is in the process of preparing its submission for that review.

Panel reviews are initiated when a project is expected to carry serious environmental impacts or stoke significant concern among the public. Equipped with their own budgets, the reviews are quasi-judicial processes and require public hearings take place.

Cabott told The Narwhal the assessment board, the federal government and the Yukon government all have the authority to subject the Kudz Ze Kayah mine to a panel review.

Cabott said there has been no formal request to initiate a panel review into the Kudz Ze Kayah project.

“Is that option still available in this stage of the assessment process? Yes. However, it’s not a focus of ours right now,” she said.

The Finlayson caribou herd would likely suffer population declines were the Kudz Ze Kayah mine to go ahead. Photo: Yukon Government

Last year, Yukon First Nations leaders called on the assessment board to extend the public comment period for the project, citing potential effects to the Finlayson caribou herd and the possibility of increased rates of sexualized violence toward First Nations women if outstanding issues associated with the project aren’t addressed.

A panel review could provide an opportunity for these concerns to be addressed with more First Nations and public engagement.

Lewis Rifkind, mining analyst with the Yukon Conservation Society, told The Narwhal a panel review would be a “big deal, especially for the Yukon.” “If we started setting a precedent for mines that are of environmental or First Nation concern — which I would argue is anywhere in the Yukon — it might be a default to go to a panel review,” he said.

A panel review might also consider how the Kudz Ze Kayah mine might fit into Yukon’s larger relationship with mining projects and their cumulative and long-term impacts on the environment and First Nations.

Abandoned mines are commonly found in southeastern Yukon. There’s the beleaguered Wolverine mine, for instance, which has yet to be fully cleaned up and has cost millions of dollars just to keep it from leaching contaminated water into the surrounding area. 

Rifkind added that Kudz Ze Kayah could contribute to a proliferation of new exploration and mining in the area. 

“Nothing attracts success like success,” he said. “Once you’ve got a successful mine, other companies are going to start looking for neighbouring ore bodies and you get sort of a sprawl happening of mining explorations and, possibly, actual mines.”

The prospect of additional exploration and mining projects piggybacking off the infrastructure built for Kudz Ze Kayah could mean more stress on the Finlayson caribou herd.

“The impact on the caribou in that situation would be terrible because you start to get cumulative impacts happening,” Rifkind said. 

Road construction has been firmly cautioned against elsewhere in the territory. Late last year, the Yukon government cancelled the 65-kilometre ATAC resource road due to mounting concerns the road would invite further industrial incursion into the Beaver River watershed.

The assessment board launched another public comment period for the Kudz Ze Kayah project on Feb. 1. When the comment period closes on March 8, the board will begin to make changes to the screening report based on feedback from Yukoners and the federal government’s decision, Cabott said. 

“We will work to address areas of concern,” she said.

In his letter to the premier, Charlie said he wonders why the panel review option is available if Yukon is not going to make use of it.

“It is difficult for Liard First Nation to understand why the panel option exists in the legislation if not to address major projects [that are] subject to Kaska Title in circumstances that make serious infringement — and potential extinguishment — of Kaska harvesting rights inevitable.”

Read more: Curing the ‘colonial hangover’: how Yukon First Nations became trailblazers of Indigenous governance

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The Government of Northwest Territories has been charged $10,000 for destroying the nests of at-risk bank swallows, a regional wildlife enforcement director with Environment and Climate Change Canada told The Narwhal.

“To me, this demonstrates the Government of Canada’s desire and need to protect the species that are listed under federal legislation,” said Trevor Wyatt of Environment and Climate Change Canada. “This is one of the concrete ways we have to deliver this commitment.”

The charge, laid in a territorial court on Jan. 28, falls under the federal Species at Risk Act, which seeks to protect wildlife species vulnerable to extinction as well as their habitats. The $10,000 fine will be paid into Canada’s Environmental Damages Fund, which is used to support the natural environment.

The Committee on the Status of Endangered Wildlife in Canada — the advisory body that determines which wildlife requires an at-risk categorization — recommended bank swallows be listed as threatened in 2013, which the federal government did in 2017. This is the first charge of its kind in the North, since the bird was listed.

Bank swallows, which are found across the country — from Nova Scotia to Yukon — have experienced “severe long-term decline,” with populations plummeting by 98 per cent over the last 40 years, according to the committee’s 2013 assessment of the species. The small song birds, known for their aerial acrobatics and extremely social nature, can be identified by the distinctive dark breast band above their white bellies.  

Ongoing habitat loss, climate change and pesticide use are cited as being key factors lessening bank swallows’ chances of survival.

The incident in the Northwest Territories took place in 2018, when the territorial government’s infrastructure department hired a contractor to level the slopes of a quarry near Edzo, N.W.T., to deter migratory bank swallows from nesting. However, the contractor’s work took place too late in the season and the nests of about 12 bank swallows were destroyed, according to an agreed statement of facts. 

Trevor Wyatt of Environment and Climate Change Canada believes similar incidents can be avoided in the future if the territorial government takes more time to educate people who work in threatened species’ habitats. Photo: Karel Bartik / Shutterstock

Crown prosecutor Morgan Fane told The Narwhal the case represents “a cruel irony.”

The territorial government was charged because it failed to ensure the mitigation work happened before the time of year when the birds are busy making their nests, Fane said. “In this instance, they were doing the right thing, they were doing it for the right reason, and had they followed through and ensured that the contractor was doing what was asked of them, then [the destruction of the nests] would have been avoided.”

According to the agreed statement of facts, work was conducted around the time bank swallows make their nests, which tends to occur between mid-April and late August.

Steve Loutitt, deputy minister of the Government of Northwest Territories’ Department of Infrastructure, apologized to the court.

“This was an unfortunate event where the Department of Infrastructure intended that any necessary work be done early to prevent any interaction with bank swallows during the nesting season and due to a lack of oversight on the ground, the work was not done in a timely manner,” Loutitt said, according to a written statement shared with The Narwhal. 

Case boils down to ‘lack of education’ on the birds’ status

Wyatt said the case hinges on the territorial government’s failure to educate the contractor it hired about the threatened species and their habitat.

“We’re going to encourage the territorial government to take the extra step to educate the users of their gravel pits, so that they can recognize the habitat that they’re trying to protect,” he said.

“I think there’s various parts of the country that are more aware of the actions under the legislation than others are.”

Bank swallows use geological formations with vertical slopes like riverbanks for nesting. The birds are attracted to human-made structures like quarries, which can prove precarious nesting sites, especially when they are active, Wyatt said.

The case highlights a lapse in communication, lawyer says

The company hired by the government to do mitigation work wasn’t made aware of the bank swallow’s nesting season to ensure work was done before the birds showed up.

“The Department did not exercise due diligence in ensuring the work was completed prior to mid-April 2018, or in any event prior to the arrival of bank swallows,” the agreed statement of facts states.

While the territorial government presented the contractor with an educational brochure intended to prevent possible impacts to the birds, no formal training was provided to identify their nests, according to the document.

The territorial government should have done more to verify the birds’ nests were avoided by calling the contractor or visiting the site, Fane said. 

“Entities who are operating in the field can have procedures and best practices on paper,” Fane said. “What is required of these actors is to ensure that their policies as written are being effectively implemented.”

Loutitt told The Narwhal in an email the territorial government is preparing to implement a migratory bird management plan, which will record the department’s interactions with different species of migratory birds and “provide clear guidance for employees in order to minimize the risk of harm to migratory birds, nests and eggs.” That plan will inform staff training sessions.

Both the training sessions and migratory bird management plan are expected to cost roughly $21,500 once fully complete, a Department of Infrastructure spokesperson told The Narwhal.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

An independent panel is urging the Yukon government to develop a wetlands policy to protect unique streams, bogs, fens and peatland from mining because there are no known ways to fully restore these sensitive ecosystems once disturbed. 

Wetlands filter water, provide habitat to species and sequester carbon but are quickly being lost to development worldwide — an issue drawing attention on World Wetlands Day Feb. 2. 

“Some wetlands are 6,000 years old in the Yukon,” Jamie Kenyon, Yukon manager of Ducks Unlimited Canada, told The Narwhal. That puts the formation of some Yukon wetlands at roughly 4000 B.C.E., coinciding with the Bronze Age and the development of human civilization’s earliest writing practices.

In a recent mineral development strategy report to the territorial government, the panel emphasizes how sensitive wetlands are, urging Yukon to finalize a wetlands policy “founded on the recognition that wetlands cannot be returned to a pre-disturbance state within seven generations.”

Yukon has no framework to specifically address the impacts of mining on wetlands, which are predominantly affected by placer mining operations that involve digging up wetlands, streams and river beds in the search for gold. 

Placer mining claims have grown significantly in Yukon over the last decade, particularly along the Indian River near Dawson City, where decades of extraction has dramatically harmed waterways, threatening wildlife and the Indigenous Rights of the Tr’ondëk Hwëch’in First Nation.

The absence of a wetlands protection policy has “created uncertainty” for miners, according to the Yukon government. It has also stoked concern that industry is running roughshod over wetland areas due to few checks and balances.

The territory could be on the cusp of a significant change, however, with the Yukon government slated to release the territory’s first wetlands policy later this year. Onlookers are calling for stronger baseline wetland protections that prioritize conservation and Indigenous Rights over industrial interests.

Reclamation of Yukon wetlands insufficient

The government’s goal should be to ensure new policy results in far more protection for wetlands, Randi Newton, conservation manager with the Yukon chapter of the Canadian Parks and Wilderness Society, told The Narwhal.

The need for protections that will prevent wetlands from being destroyed is evident in the panel’s warning that wetland reclamation practices are not effective, she added.

“The language in the mineral development strategy really signals that the wetlands policy really needs to set us up to make cautious decisions, recognizing that there’s these irreversible trade-offs that come with development,” Newton said. 

“The policy should prioritize avoidance of development in wetlands versus half-measures like reclamation.”

The panel also recommends the Yukon government earmark funding to encourage innovative technologies that could introduce new “rehabilitation practices” in wetlands, which include fens, bogs and swamps.

This likely revolves around the fact wetland reclamation in Yukon is “completely unproven,” Kenyon said.

“There’s no tested way to replace a fen with a fen, a bog with a bog,” he said.

The wetlands of the Indian River watershed, south of Dawson City, Yukon, have been impacted by decades of placer mining. Photo: Malkolm Boothroyd / CPAWS Yukon

There are some examples of wetland reclamation strategies that have been used in southern Canada, such as the “moss layer transfer technique,” which involves the reintroduction of peat — a spongy, organic soil-like matter made up of partially decomposed vegetation unique to bogs and fens — combined with the spreading of mulch and fertilizer and several stages of watering. According to a peatland restoration guide developed by the Université Laval Peatland Ecology Research Group, this technique has been used in more than 100 peatland restoration projects in Canada.

But restoration techniques used elsewhere may not work in Yukon, where wetlands are particularly unique because they are “inextricably linked” with permafrost, which itself can take thousands of years to form, Kenyon said. “It’s very difficult to tease apart one from the other,” he said. “The permafrost allows water to collect at the surface, which allows the wetlands to form vegetation — that peat — which allows the permafrost to not melt.”

According to a best practices strategy document from the Klondike Placer Miners’ Association, an estimated five per cent of streams in Yukon have been impacted by placer mining and that in order for operations to take place in rivers and streams, “the disturbance or destruction of these wetlands usually cannot be avoided.” Permafrost is also impacted, as miners must thaw the ice-laden sediment to successfully mine for gold.

“There is very limited information regarding the restoration of northern wetlands, particularly those in permafrost areas,” the document states.

Carl Schulze, secretary treasurer with Yukon Prospectors Association, a mining advocacy group, told The Narwhal that placer miners are able to restore wetlands to a point where they can once again sustain wildlife.

“You can restore it to a productive level, where you can start getting poplars and willows, little ponds where the ducks move back in,” he said. “The animals move in pretty quick, so as far as that goes, it’s productive, meaning that animals can benefit from it — they can find food, they can re-establish habitat.” 

“It doesn’t look like it did before anybody got at it, but, in a way, it doesn’t matter because it’s not a detriment to wildlife.”

Placer mining involves digging in wetlands for gold. Although industry is required to remediate disturbed wetlands, there are no remediation techniques capable of restoring bogs, fens and peatlands to their natural, pre-disturbed state. Research shows peatlands are crucially important to carbon storage — but only when left undisturbed. Photo: Malkolm Boothroyd / CPAWS Yukon

But Kenyon said when placer miners restore wetlands, they tend to take an entirely different form — a depression in land with water in it that, over time, allows some vegetation to grow back.

A problem, however, is that a key ingredient is lost in the process: when placer miners work a claim that includes a wetland, they tend to stockpile peat off to the side where it essentially dies, Kenyon said. An October 2020 study published in Environmental Research Letters found that peatlands cover only about three per cent of the planet and act as a rich carbon deposit, but only if left undisturbed. Drying and dead peatlands can release large amounts of emissions into the atmosphere for decades or centuries, the researchers found. According to a 2017 report by the Boreal Songbird Initiative, Canadian boreal peatlands hold at least 147 billion tonnes of carbon, equivalent to 736 years of Canada’s industrial greenhouse gas emissions. 

Kenyon noted that peat stockpiled and set aside for mining reclamation projects can be permanently damaged.

“Once peat starts drying out and is exposed to oxygen, it starts decomposing at a much faster rate, so you can’t just, five years later, throw it back … and think it will come back to what it was before,” he said.

Modernizing Yukon’s mining legislation could provide greater protections for wetlands, Indigenous Rights

Placer mining is regulated under legislation first written in 1898, well before the ecological impacts of mineral extraction were understood.

The panel found that over the last 122 years “a patchwork quilt of amendments have rendered the Yukon’s mineral resource legislation unresponsive to evolving industry circumstances and difficult to enforce.”

To fix this, the panel has recommended a major overhaul of mining legislation, setting a deadline of 2023 for that work to be completed. But some are concerned those changes aren’t coming quickly enough to protect wetlands in imminent danger from placer mining. 

This is the case for wetlands in the Dawson region, where the majority of Yukon’s placer mining operations take place. 

Darren Taylor, the director of natural resources for Tr’ondëk Hwëch’in First Nation in whose territory the Dawson region lies, told The Narwhal the ongoing destruction of wetlands is undermining his nation’s rights.

“Mining has a big impact on our traditional territory and obviously an impact on Aboriginal Rights and Title,” Taylor told The Narwhal. “You know, [Aboriginal] Rights exist throughout our traditional territory and there’s a constitutional obligation for Yukon and the federal government to ensure that development, whatever they might be, doesn’t adversely affect our right to utilize our traditional territory for traditional purposes.” 

Water and wetlands are an important component of those rights, Taylor said, noting wetlands in his nation’s territory are crucial for biodiversity and provide fish and moose habitat that his community relies on for food.

“Through the erasing of the land and water, and our ties to that land and water, we are losing ourselves … from the land.”

The Yukon Water Board, the independent body responsible for issuing water licenses to placer miners, recently held virtual public hearings on placer mining in wetlands. The findings of those hearings will help inform the Yukon government’s upcoming wetlands policy. 

During those proceedings, Tr’ondëk Hwëch’in First Nation representatives, including Taylor, spoke of the devastating impacts placer mining has already had on wetlands in the Indian River watershed. For several years the Tr’ondëk Hwëch’in First Nation has asked for mining to be stopped in wetlands that cannot be reclaimed to their natural state. 

“With the increase in activity levels and lack of reclamation and destroyed habitat, I don’t feel as comfortable with harvesting down there anymore,” he told the board. “I don’t even want to drive down there for leisure. It’s too depressing.”

“Through the erasing of the land and water, and our ties to that land and water, we are losing ourselves … from the land,” he said.

Taylor told The Narwhal that remaining wetlands urgently need to be documented. “All we’re saying is we need to identify the wetlands, their functions and which ones you can mine and which ones you can’t.”

The impacts of placer mining are very visible in the unnatural pilings running throughout the Klondike Valley near Dawson City, Yukon. Before the Gold Rush, the Klondike River was one of the healthiest spawning rivers in the Yukon Watershed. However, placer mining throughout the Klondike devastated the salmon run in the region. Only in recent years has the river seen a return of Chinook salmon. Photo: Peter Mather

The Yukon chapter of the Canadian Parks and Wilderness Society recently called on the water board to stop issuing water licenses until reclamation standards are established and disturbance thresholds are set, or until land use plans are in place. 

The Yukon government has refused calls to halt placer mining in the region while the development of the Dawson Regional Land Use Plan is underway. 

According to a regional resource assessment report conducted by the Dawson land use planning commission, 10 per cent of the Dawson region is made up of rare wetlands that are ecologically important.

Several of the independent panel’s recommendations to the Yukon government seek to ensure Indigenous Rights are upheld in the new legislation — that the acts align with modern treaties, the Canadian constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as acknowledge the principle of Free, Prior and Informed Consent. 

Were the Yukon government to act on the panel’s recommendations it could strengthen the involvement of First Nations when it comes to placer mining in wetlands, Taylor said. 

Newton, of Canadian Parks and Wilderness Society, said mining in wetlands has already reached an unsustainable level, with that way of doing business set to continue.

“The Yukon doesn’t have a good way to right now to protect important ecosystems for cultural sites from development while we wait for land use planning,” she added. “There are lots of places that would have been protected had land use planning got there first.”

There are places in Yukon where mining is getting close to unsustainable levels for local ecosystems, Newton said, “so bringing in legislative changes could help us get off that treadmill of development that leads to those situations.”

Newton added that neither the Yukon’s new mining legislation nor a new wetlands policy will offer a “silver bullet” solution to the impacts of mining in wetlands. But she is encouraged that the development of these new laws and policies could leave a positive mark. 

“We’re at this interesting moment where real change is possible.”

The independent panel’s final strategy document is expected to be submitted to the Yukon government and First Nations in March. Yukoners are invited to comment on the draft version until Feb. 22. 

Editor’s note: a report cited in this story, on Canadian boreal peatlands, was published by the Boreal Songbird Initiative, an organization which provides financial support to The Narwhal. Per our editorial independence policy, The Narwhal maintains a firewall between news coverage decisions and all sources of revenue.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

In 1973 Elijah Smith, former chief of Champagne and Aishihik First Nations, travelled to Ottawa with a delegation of First Nations leaders to present then-prime minister Pierre Trudeau with a now-historic position paper.

“We are not here looking for a handout. We are here with a plan,” Smith famously said to Trudeau.

Smith was tired of First Nations being treated “like squatters in their own country.”

“We want to take part in the development of the Yukon and Canada, not stop it,” the paper Smith presented stated. “But we can only participate as Indians. We will not sell our heritage for a quick buck or a temporary job.”

Rather than treating First Nations in Yukon like outsiders to be haggled with, Smith proposed governments re-envision how colonial and Indigenous nations could work together under a treaty framework “that will help us and our children learn to live in a changing world.”

Smith’s overture in Ottawa would become foundational in the establishment of a rights framework in Yukon that is unique in all of Canada and recognizes First Nations as self-governing with jurisdiction over territorial lands.

There are 14 First Nations in Yukon, 11 of which have entered into unique self-governance agreements with the territorial and federal governments. The additional three First Nations are still in negotiations.

So, how do Yukon First Nations experience Indigenous Rights and sovereignty differently than other First Nations in Canada?

‘We have our own independence’: Yukon First Nations enact their own laws and regulations

Under the structure of unique modern treaties called final agreements, Yukon First Nations exercise the powers of self-governance: they manage their lands, decide what kind of development projects go where, collect taxes and create corporations.

Before final agreements were struck, Yukon First Nations were, like many other First Nations across the country, beholden to the 1876 Indian Act, which David Newhouse, director of the Chanie Wenjack School for Indigenous Studies at Trent University, describes as “one of the most visible legacies of Canada’s colonial history” designed to transform Indigenous people into democratic and “civilized” citizens.

The act was used to institute “Indian Status,” a system predicated on blood quantum, and to replace traditional forms of governance with elected band councils that were — and continue to be — directly linked to the federal government rather than Indigenous governance systems that pre-date colonization.

In order to get out from under the bind of the Indian Act, the Yukon Council of First Nations, Yukon and Canada developed a document known as the Umbrella Final Agreement, a non-binding framework designed to guide final agreements with individual First Nations, that was signed by all parties in 1993, 20 years after Smith presented his paper in Ottawa.

Tragically, Smith died in an accident in 1991, so he didn’t live to see the Umbrella Final Agreement come into force “to recognize and protect a way of life that is based on an economic and spiritual relationship between Yukon Indian People and the land.”

Elijah Smith, former chief of Champagne and Aishihik First Nation, was instrumental in the development of the rights framework that recognizes Yukon First Nations as self-governing. Photo: Champagne and Aishihik First Nation

But once the umbrella agreement was in place, individual treaties were quick to follow. 

“We have our own independence,” Roberta Joseph, Chief of Tr’ondëk Hwëch’in First Nation, which signed its final agreement in 1998, told The Narwhal. 

“One day we were under the auspice of Indian Affairs and the next day [we were] in charge of our own funding and lands — being able to manage those things ourselves.”

And while the final agreements set the stage for First Nations’ self-governance, the Umbrella Final Agreement paved the way for co-governance of wildlife and natural resources between Yukon and First Nations. 

For instance, the agreement led to the creation of Yukon’s environmental assessment legislation and the subsequent formation of the Yukon Environmental and Socio-economic Assessment Board, which oversees project applications for industrial development projects. 

Unlike in other jurisdictions in Canada, First Nations in Yukon participate as co-managers of project review boards. This isn’t the case in other provinces like British Columbia, where project reviews are conducted by provincial and federal governments and agencies and First Nations participate in processes much like other corporate or civil society actors. While Indigenous Rights are recognized and affirmed under Section 35 of the Canadian constitution and B.C. has vowed to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), projects can be unilaterally imposed on First Nations and their territories (which in B.C. are predominantly untreatied and unceded) without their consent. This situation recently led to the United Nations Committee on the Elimination of Racial Discrimination calling on Canada to pause construction on the Site C dam, the TransMountain pipeline and the Coastal GasLink pipeline — three projects which are currently being built despite opposition and legal challenges from affected First Nations. 

In Yukon, however, First Nations that have signed final agreements are recognized as governments in their own right and are granted decision-making authority over projects proposed in their land. 

Which Yukon First Nations have signed final agreements?

The 11 Yukon First Nations that have signed final agreements include Champagne and Aishihik First Nations, First Nation of Na-cho Nyäk Dun, Teslin Tlingit Council, Vuntut Gwitchin First Nation, Little Salmon/Carmacks First Nation, Selkirk First Nation, Tr’ondëk Hwëch’in, Ta’an Kwäch’än Council, Kluane First Nation, Kwanlin Dün First Nation and Carcross/Tagish First Nation.

The three First Nations still in negotiations are the White River First Nation, the Liard First Nation and the Ross River Dena Council.

Yukon final agreements: what’s land got to do with it?

Once a final agreement is struck, a few different things happen with First Nations territory because these modern treaties also act as comprehensive land claims. 

First, the land positioned under the ownership of First Nations is called settlement land. The Umbrella Final Agreement actually placed a cap on how much of Yukon could be allotted to settlement lands: about 41,595 square kilometres, about 8.5 per cent of the total land area. And further, the agreement actually created two categories of settlement lands that determine what kind of rights First Nations can exercise on each. 

Under category A settlement lands, First Nations are the primary law-makers and decision-makers and own the rights to the land above and below the surface. In category B lands, First Nations own the rights above the surface, but not below, so this greatly impacts how decisions are made about oil and gas and mining projects.

The umbrella agreement further stipulates that category A lands in Yukon cannot exceed 25,899 kilometres and category B lands cannot exceed 15,695 kilometres. 

What proportion of the allowable kilometres goes to each First Nation is something negotiated within each nation’s final agreement.

First Nations, such as the self-governing Vuntut Gwitch’in, work with the Yukon government to co-manage lands that are still held by the Crown. These co-management relationships give First Nations in Yukon more control over lands and resources than in many other parts of Canada. Photo: Matt Jacques / The Narwhal

But almost the entire Yukon landmass falls within First Nations traditional territories, so what happens to those landscapes? Technically, Yukon First Nations don’t own their traditional territories, but are given a high level of involvement in what happens on those lands (they’re considered “special management areas”) as they’re managed under the authority of the Yukon government. First Nations also exercise their constitutionally protected Indigenous Rights on their traditional territories to hunt, trap, fish, protect cultural artifacts and even co-manage parks.

Traditional territory that falls outside of settlement land classification can also fall into a category of fee simple settlement land, which grants a First Nation similar rights to any Yukoners who has purchased a parcel of land.

Kris Statnyk, a Vancouver-based lawyer and citizen of self-governing Vuntut Gwitch’in First Nation in Old Crow, Yukon, said because settlement land represents a relatively small portion of a Yukon First Nations’ traditional territory, First Nations have had to work in creative and evolving ways with the Yukon government to co-manage lands held under Crown title.

That co-management, particularly of natural resources, has led to the creation of new institutional relationships that foster participation from Yukon First Nations, Statnyk said.

“That, I think, has been really unparalleled elsewhere.”

One particular way these creative relationships have unfolded is through the Yukon Land Use Planning Council, a joint body consisting of members from the federal and Yukon governments and the Council of Yukon First Nations that recommends policies and priorities to affected First Nations and the Yukon government on land use planning. The council also suggests terms of reference for regional land use plans, which are carried out by independent commissions. 

The famed Peel watershed in Yukon was the subject of a decade-long land use planning process, which resulted in the vast majority of the landscape being protected from roads and industrial development. Photo: Peter Mather

Now, land use plans are a thing in Yukon. And a part of the reason why they’re pursued with such passion goes back to the Umbrella Final Agreement and even Smith’s position paper.

The paper notes “the cornerstone of the settlement is land. This means that the Indian people will own land and have financial resources to develop that land for the benefit of the people living on that land.”

So when the Umbrella Final Agreement was cast, it placed an emphasis on the need for regional land use plans that would set out in advance what should and should not occur on specific landscapes. 

Perhaps Yukon’s most famous land use plan was developed for the Peel Watershed, a 68,000 square-kilometre stretch of largely undeveloped mountains, wetlands, rivers, tundra and forest. It is world-renowned for its rugged natural beauty, ecological richness — and mining potential. 

The Peel Watershed’s land use plan took more than a decade to complete, owing in part to a legal battle that wound its way up to the Supreme Court of Canada, where parties battled over just how much industrial development should be allowed in the region and under the provisions set out in the Umbrella Final Agreement. The courts ultimately sided with Yukon First Nations and conservation organizations and now mining, roads and oil and gas projects are only permitted in one parcel that represents about 17 per cent of the land mass.

Read more: What Does The Peel Watershed Ruling Mean for the Yukon – and Canada?

There are 10 land use planning regions in Yukon and plans have so far only been completed for two regions: North Yukon and the Peel. The Dawson land use planning process is currently underway and highlights how significant and potentially controversial these planning processes can be, especially when they have the potential to set conservation and First Nations priorities against industry and commercial interests. 

The Dawson region falls within the territory of the Tr’ondëk Hwëch’in First Nation and Chief Joseph has expressed dismay that it has taken so long to develop a land use plan while placer mining operations forge ahead, causing potentially irreversible damage to waterways and wetlands. 

Despite the controversy over the Dawson land-use plan, Joseph said the establishment of final agreements has granted First Nations greater decision-making authority when it comes to land use plans. 

The Tr’ondëk Hwëch’in First Nation final agreement “has really provided us with all of the tools and instruments that we needed to manage ourselves like our ancestors did over a hundred years ago and how they took care of the land,” Joseph said. “It was a way to also regain our culture and traditions back and a way to preserve that history.”

Statnyk said the agreements have forced all parties to engage with the question of Indigenous self-governance “that hadn’t been addressed in the enactment of section 35 and the constitutional conferences that followed.”

Implementation hasn’t always been smooth, especially when governance issues really come down to who has the ultimate say over land.

“We’re that weird group of 11 Yukon First Nations that each have their own distinct arrangement,” Statnyk said. “That continues to be an uphill battle, you know, still being treated like Indian Act bands, essentially, this sort of colonial hangover.”

“It’s hard to break those patterns. We’re trying to implement self-government when colonization is still ongoing, quite simply.”

Challenges for Yukon First Nations rights in the 21st century

Changing perspectives on Indigenous Rights and Title may signal a need for evolution when it comes to the way First Nations rights are handled in Yukon. One Yukon First Nation in the treaty negotiation phase has pointed out that the Umbrella Final Agreement no longer functions smoothly in the new era of reconciliation. 

The Liard First Nation, which very recently announced its intention to seek self-governance, wants to enter into a modern treaty outside the precepts of the Umbrella Final Agreement. 

Chief Stephen Charlie told Yukon News he views the Umbrella Final Agreement as too outdated to functionally guide new treaties and land claims.

“That document is over 35 years old, and a lot has changed in Aboriginal Rights in title and recognition in this country,” he said. Charlie noted restrictions on the amount of traditional territory and mineral resources that can be owned by a Yukon First Nation is a major hurdle for his nation. 

“Our Elders were so wise, they realized that the [Umbrella Final Agreement] was a dead end for us. We are rich in resources in our traditional territory, and what they were offering is just miniscule [compared] to what we could move forward on,” he said.

Map of Yukon First Nations traditional territory. Photo: Government of Canada

The Liard First Nation’s discontent with the Umbrella Final Agreement could signal the need for modernization, even though the modern treaties developed by Yukon First Nations were trailblazing and remain cutting-edge, said John Borrows, Canada research chair in Indigenous law at the University of Victoria.

Yukon’s final agreements represent “part of a family of possibilities,” he said, pointing to the development of more recent modern treaties like the Nisga’a Treaty, negotiated between the Nisga’a First Nation, B.C. and the federal government in 2000. Under this treaty, the first of its kind in B.C., the Nisga’a government has the authority to enact laws, manage its lands, set environmental protections and administer social services. But the Nisga’a government still falls under the authority of both the Canadian Constitution and the Charter of Canadian Rights and Freedoms. 

In an interesting twist, the Nisga’a Treaty is based on a ‘meet or beat’ principle that grants authority to the government with the highest standards for laws pertaining to child protections, education and forestry. So if the Nisga’a laws meet or exceed provincial standards for the management of forests, those laws will take priority.

These creative arrangements have come a long way from the first modern treaty signed in Quebec 1975, Borrows said.

While that treaty long-preceded the Yukon First Nations final agreements, Borrows said First Nations are “renovating” earlier agreements, “renegotiating dimensions” of what earlier agreements could mean for their communities.

“I think a lot of self-government has not only been recognized but also exercised through those agreements, and they seem to keep getting better all the time.”

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Over the past 10 years, the Yukon government has collected a mere 0.03 per cent of the value of placer and quartz resources on behalf of all Yukoners, the rightful owners of those minerals.

An independent panel appointed by the government to review the territory’s mining legislation found that, during this period, miners extracted minerals worth an average of $335 million per year yet only paid an average of $100,000 per year in royalties. 

The two laws predominantly responsible for mining in the territory, the Placer Mining Act and the Quartz Mining Act, were established in the late 1800s during the Klondike Gold Rush era and are in serious need of modernization, according to the panel’s recent strategy report, which is based on years of public engagement and is intended to inform the Yukon government’s efforts to bring Yukon’s mineral development legislation into the 21st century.

Yukon’s antiquated royalty rates for gold — set into law in 1906 — are famously low at just 37.5 cents per ounce of gold, based on a per-ounce price of $15. In today’s market, one ounce of gold is worth more than $2,300.

“The royalty regime is very old, and it has not been updated in a significant period of time,” Math’ieya Alatini, a member of the independent panel, told The Narwhal. “We have to bring the royalty regime up to date and make it commensurate with the value of the minerals that are being removed.”

Low royalties are something of a sore spot for many in Yukon, including members of the public, First Nations and miners themselves, who argue their industry provides the territory with a cascade of economic benefits not necessarily reflected by royalties. In order for mining to remain sustainable and profitable and continue to have social buy-in, the panel recommends the Yukon government make some key changes to ensure the benefits of mining are more equally distributed through changes to the royalty regime and, potentially, through new taxes.

Yukon’s modern placer mining gold rush

Over the past decade, Yukon has seen a resurgence of mining interest, especially for gold extracted through placer mining operations. According to the Yukon Geological Survey’s latest comprehensive report on placer mining, published in 2018, there are 25,219 placer claims in the territory, the highest number dating back to 1973.

Placer mining involves removing rocks and gravel from streams and wetlands in search of gold and can cause disturbances in water quality that can impair the feeding and reproduction of fish. Over many years, placer mining can destroy irreplaceable wetlands, disrupt waterways and harm unique riparian ecosystems that connect land and water. And although placer mining occurs exclusively in streams and Yukon’s wetlands, there are no specific protections in place to protect these unique ecosystems from this kind of activity. 

Yukon’s modern gold rush, popularized in reality TV shows like Gold Rush and Yukon Gold, has been facilitated by new technologies, machinery and industrial techniques that are a far cry from the humble gold pan of the 1890s. And while the pace and scale of placer mining operations has evolved in recent years, the royalty scheme has not.

“There are going to be detrimental effects [from mining],” Alatini said, noting the resources being harvested are fundamentally nonrenewable. “These minerals are not going to be returned to the ground. … How do we adequately compensate this generation and future generations for the loss of use?”

Read more: Yukon wetlands pushed to tipping point by placer mining, First Nation and conservationists say

The panel suggests the government act on recommendations first made by the Yukon Financial Advisory Panel in 2017 to carry out a comprehensive review of mining policies “with a particular emphasis on ensuring fair and efficient royalty rates.”

Based on the findings of that review, the Yukon government should modernize mining legislation “to ensure all Yukoners receive fair and meaningful financial returns from mining activities while also ensuring competitiveness with other Canadian jurisdictions,” the panel said.

One of the primary ways the panel recommends altering the royalty system is by adjusting royalties based on the profitability of individual mining operations. A profit-based placer gold royalty would require higher royalties from more profitable operators, while “placer operations that are truly marginal in terms of profitability will continue to pay essentially no royalties.”

The panel also suggests the Yukon government consider charging more royalties from non-Yukoners — miners who might simply show up to cash in on high market gold prices — than from local operators who are there for the long haul. 

Read more: Gold seekers are flooding into the Yukon and wreaking havoc on its rivers

New taxes could increase public benefits of mining in Yukon

Royalties don’t represent the only way Yukoners and Yukon First Nations might benefit from mines, however. The panel points to new forms of taxation that could improve mining standards, provide social benefits to local communities and generate greater rewards for local mine workers over itinerant workers at mines.

Currently, Yukon does not charge mine operators anything for the use of water. An industrial water charge, similar to that introduced in British Columbia in 2016, could be used to generate revenue from mines and also create incentives for miners to keep water clean. The panel recommends the government introduce a rolling water tax that rewards operators for maintaining high water quality.

Tyler Hooper, a spokesperson with the B.C. Ministry of Forests, Lands, Natural Resource Operations and Rural Development, recently told The Narwhal that all licensed surface water and groundwater users are required to pay annual water rents. The rental rates are variable and can exclude small-scale placer mining operations. But according to a B.C. provincial government list of example rates, a mine that uses 1.2 million cubic metres of water per year would be charged $2,500 annually or $2.08 per 1,000 cubic metres. 

Lewis Rifkind, mining analyst for the Yukon Conservation Society, previously told The Narwhal the recommendation to roll out a water tax was welcome, but added he would need more detail to understand how such a fee would work in Yukon.

“How will it be applied? Will it be different for quartz exploration to a quartz mine to placer mining?” 

The panel’s report does not go into any detail regarding these matters nor the particulars of how a water tax could be applied to various mining operations in Yukon.

Water licences for mines are issued by the Yukon Water Board and there are more than 100 granted to placer miners in the Indian River watershed directly south of Dawson City, Yukon, alone.

A map showing the location of water licenses in Yukon. The purple dots indicate water licenses for placer mining. Photo: Yukon Government

Rifkind expressed concern that a water tax could simply be added to the general cost of doing business rather than act as a true incentive to improve mining practices and keep water clean.

The panel also recommends applying a payroll tax to people who work but don’t live in Yukon. Right now, personal income tax corresponds with the jurisdiction in which out-of-territory workers live.

“It would allow a sort of prorated amount to be transferred back to the Yukon,” she said, adding that a large portion of Yukon’s workforce is made up of people from other jurisdictions. “We want to make sure some of that money stays in the Yukon to act as a multiplier for the economy.”

The payroll tax would be deductible for Yukon residents, the strategy states.

Read more: Canada’s mining giants pay billions less in taxes in Canada than abroad

Taken together, the water and payroll taxes could help buoy a heritage fund — money that would be held in trust to benefit future generations.

Alatini said the creation of a heritage fund would not only recognize the value of the resources extracted from Yukon, but also capture some of that value for Yukoners “that translates from the work that’s being done in their backyard to something that can benefit everyone that is here.”

“A Yukon heritage fund would provide a visible link between mining activity, royalty revenues from mining and long-term prosperity in Yukon, thereby enhancing sustainability and the industry’s social licence to operate,” the strategy states.

‘Negligible amount’ of royalties are shared with self-governing Yukon First Nations 

Through Yukon’s modern treaties, self-governing Yukon First Nations are able to receive royalties collected by the Yukon government. But because the territorial government receives such low royalties to begin with, only a “negligible amount” is actually making its way to First Nations, the panel found.

Alatini said the creators of Yukon’s Umbrella Final Agreement — a political agreement struck between Yukon First Nations and the Yukon and federal governments — “had contemplated First Nations receiving a portion of the benefits of the resources that are being taken from their traditional territories — full stop,” Alatini said.

The average royalty cheque received by First Nations during the past decade ranged between $6 and $24, Alatini added.

Tr’ondëk Hwëch’in First Nation, on whose territory the vast amount of Yukon’s placer mining takes place along the Indian River, reported receiving a royalties cheque from the government for $65 in 2017. That same year, placer mining along the Indian River accounted for 50 per cent of total placer gold mined in Yukon, according to the Yukon Geological Survey, amounting to more than 350,000 crude ounces of gold. 

The panel recommends that “Yukon First Nations receive a fair financial and social return from mining and exploration within traditional territories by strengthening the connection between revenue flows and Indigenous interests in the land itself.”

Recommendations from the panel also include allowing First Nations, under their final agreements, to charge companies directly for water use or land rental fees, instituting a statute-based template for benefit agreements with affected First Nations and requiring both impact and benefit agreements in advance of quartz mine development, construction, production and decommissioning.

Challenges lie ahead when it comes to new Yukon royalties and taxation structure

Carl Schulze, secretary treasurer for the Yukon Prospectors Association, told The Narwhal industry isn’t thrilled about the idea of paying more taxes, noting that Yukon’s economy is stimulated just by virtue of mines being located in the territory.

“What you’ve got to think about is there’s still the supply chain, service chain, all the employees, all the distribution,” Schulze said. “If you took just payroll for Yukoners, and what you paid your contractors, you know, whoever trucks the ore, whoever supplies geological services, local legal services, anything like that, I mean, it’s an enormous amount of money.”

The Klondike Placer Miners’ Association has also been a vocal opponent of increased royalty rates for years, with former association president Mike McDougall suggesting increased royalties would undercut the profitability of placer mining operations, which he likened to the “family farm.”

Despite dissatisfaction over low royalties from members of the public, First Nations and miners themselves, the mining industry in Yukon averse to paying more taxes, saying the mere presence of mines in Yukon stimulates the territory’s economy. Photo: Malkolm Boothroyd / CPAWS Yukon

But in addition to industry opposition, there are other potential challenges to introducing new and increased revenue generators from mines in Yukon, most notably the territory’s transfer payment from Ottawa.

Under the territorial formula financing arrangement, Yukon receives federal funding every year to pay for public services. But in order to maintain this funding arrangement, the Yukon government can only collect and keep $6 million worth in resource revenues each year.

“For every dollar above that $6 million amount, a dollar is deducted from Yukon’s [territorial formula financing] grant,” Eric Clement, director of communications with the Yukon government’s Department of Finance, told The Narwhal in an email.

That $6 million ceiling may present challenges to Yukon moving forward with some of the most ambitious recommendations of the independent panel, including the creation of a heritage fund.

Six million dollars in resource revenues is simply “too low to capitalize a Yukon heritage fund,” the panel noted in its report. 

Other arrangements could alleviate Yukon’s $6 million limit, however. The panel suggests Yukon look to the Northwest Territories’ arrangement with the federal government, which allows that territory to keep up to 50 per cent of its resource revenues without a specific cap. If implemented in Yukon, this arrangement would allow the territory to receive roughly $54 million in resource revenues without being forced to forego federal support, the panel found.

Alatini said new arrangements might be necessary to re-envision how Yukon generates and holds onto resource wealth. A new agreement would require “that the Yukon government and Canada come to the table,” she said. “We need to have consistently producing mines in order for this to even be an option.”

Updated on Feb. 25, 2021 at 5:40 p.m. PST: Over the past 10 years, the Yukon government has collected 0.03 per cent of the value of placer and quartz resources, not 0.3 per cent as previously stated.

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Yukon’s mining legislation is outdated and requires a major facelift to better protect the interests of all Yukoners, according to an expert panel tasked with making recommendations for a new Yukon Mineral Development Strategy.

The panel, first appointed in April 2019 to review the territory’s mining regime, released a strategy document late December, which outlines 79 recommendations for the Yukon government, including expediting land use planning and taxing companies for water use.

“This is a holistic document that takes into account such broad perspectives that is looking at potential solutions to challenges that have been on several tables for decades,” panel member Math’ieya Alatini told The Narwhal. 

“It’s the short-term pain for the long-term gain of building a sector that is economically viable, that is trusted globally and is, economically, going to benefit all Yukoners now and in the future.”

The draft strategy is the culmination of feedback collected from Yukoners, many of whom expressed frustration at inadequate legislation that does not protect the environment or communities, and tokenistic consultation with affected First Nations.

Read more: ‘Mining at any cost’: Yukoners say territory needs major mineral development overhaul

The panel noted it is confident its new report “fulfills the desire of many engagement participants for a bold, transformative and contemporary approach to Yukon mineral development” and said, moving forward with a mineral strategy, the Yukon government must “embrace the principles of reconciliation and work to build the trust and respect of Yukon First Nation governments, and the entities and agencies borne of the modern treaties.”

Yukoners can comment on the recommendations until Feb. 22. A final strategy will be submitted to the Yukon government and First Nations roughly one month later.

The Yukon government is reviewing all recommendations included in the draft strategy, Jesse Devost, spokesperson with Energy, Mines and Resources, told The Narwhal in an email.

“The release of the draft strategy is a significant step toward the establishment of a Mineral Development Strategy for Yukon that articulates the goals and objectives of Yukoners,” he said.

So what does the new report actually recommend? Here are some topline points.

Yukon mining legislation must be updated and must uphold Indigenous rights: panel

The Quartz Act and Placer Mining Acts are the two key pieces of legislation that dictate how the mining industry operates in Yukon. Despite numerous amendments over the years, both acts date back to the Klondike Gold Rush era in the 1890s and remain steeped in antiquity.

The panel found that over the last 122 years “a patchwork quilt of amendments have rendered the Yukon’s mineral resource legislation unresponsive to evolving industry circumstances and difficult to enforce.”

The Yukon’s controversial free entry system allows prospectors to stake a claim anywhere they want, so long as it isn’t in a park or on certain municipal or settlement lands. This system has created conflict with First Nations that argue it undermines self-governance of Indigenous territory. The Carcross/Tagish First Nation has called on the Yukon government to abolish the system.

Weathered wooden posts mark a mineral claim near Rambler Creek. Yukon’s free entry mining system is a relic of the Klondike Gold Rush, and in much of the Yukon people can still claim mineral rights by pounding a post into the ground. Photo: Malkolm Boothroyd

The panel recommends “clear, consistent and specific constraints” on the free entry system to, in part, uphold the values of reconciliation. Without written consent of First Nations, there must be constraints on staking of lands where First Nations own surface rights, called Category B lands, the strategy states.

Several of the panel’s recommendations seek to ensure that Indigenous rights are upheld in the new legislation to ensure the acts aligns with modern treaties, the Canadian constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as acknowledge the principle of Free, Prior and Informed Consent. 

To keep track of the mineral sector’s progress toward supporting principles contained in UNDRIP, the panel recommends a semi-annual “report card” be developed.

The panel also recommends that Yukon First Nations mining lands officers are granted full enforcement authority under new legislation and that reconciliation be added to the “list of reasons the Yukon Government may use to justify a prohibition of entry order for prospecting, staking and mining.”

Roberta Joseph, Chief of Tr’ondëk Hwëch’in First Nation, and Dana Tizya-Tramm, Chief of Vuntut Gwitchin First Nation, were not available to provide comment on the recommendations.

Carl Schulze, secretary treasurer with Yukon Prospectors Association, told The Narwhal it’s unclear what “reconciliation” means, which could cause confusion among the investment community.

“You can’t work a policy around really vague terms, at least you can’t when you incorporate it into regulations, permitting laws, anything like that — you have to deal with really hard and fast, nuts and bolts stuff,” he said.

Panel recommends expediting land use plans to clarify when and where mining can occur

To combat uncertainty surrounding land tenure, the panel recommends completing the five remaining regional land use plans concurrently in the next five years, including the active Dawson land use plan (other land use plans include Kluane, Whitehorse, Teslin, and Northern Tutchone.) 

Regional land use plans, which stem from 11 Yukon First Nations’ Final Agreements that cement First Nations self-governance, determine what can and cannot occur in a particular region, essentially balancing conservation values, First Nations’ rights and industrial pursuits.

The panel also recommends redirecting some of the not-yet-allocated $360 million in federal and territorial funding for the Yukon Resource Gateway Project, a program that seeks to improve the territory’s road network into areas where there is high resource potential, to speed up the land use planning process.

Schulze said he doubts all six regional land use plans can be completed within five years, noting that it took the land use plan for the Peel Watershed more than a decade to be completed. The Peel watershed saga resulted in a contested version of the regional plan being brought to the Supreme Court of Canada in 2017. The court ruled in favour of First Nations and environmental groups and an amended version was eventually adopted in 2019.

“These things go on a long time,” Schulze said, especially if there is opposition to proposed plans from certain groups. “I would say if they can do the remaining six [land use plans], including Dawson, in 10 years, I would tip my hat to them,” he added.

According to feedback submitted to the planning commission by the Yukon Prospectors Association’s former president in 2006, the association did not want the final land use plan for the Peel to “stop prospectors and mining exploration companies from prospecting, claim staking and doing low-level exploration” in the watershed. 

Schulze also cautioned against rerouting money from the Yukon Resource Gateway Project to fast-track land use planning, saying the move would deprive valuable infrastructure from getting built.

The Yukon Prospectors Association calls itself “the voice for mineral exploration in the Yukon.”

“The one thing about land use planning is it invariably alienates some lands from mining, so, from our standpoint, we don’t benefit from it — not directly, because we lose some of the access to the land and there would be restricted access to other parts,” Schulze said on behalf of the association. “Now the money that was intended to help our industry could go against it.”

The strategy states that land use planning provides much-needed certainty for investors, which is why they should be completed on an expedited timeline.

“Investors hate uncertainty,” the strategy states. Completed land use plans will provide clarity to industry regarding whether there are “unmitigatable concerns about any given exploration area or mining project” and give both industry and government a better idea of where roads must be built to support mineral development.

The Yukon government recently cancelled a resource road that would have connected several mining exploration projects after finding its construction would violate relations with First Nations. The company behind the proposed resource access road, ATAC Resources, said it is seeking legal counsel on the territory’s decision to cancel the project.

In a bid to avoid this kind of investor uncertainty, the panel recommends implementing staking moratoriums in areas deemed to contain “high-value environmental, social and cultural attributes” once a given land use planning process is launched. 

“A proactive approach to identifying staking prohibition zones at the beginning of regional planning processes will reduce a major source of uncertainty for the industry and a significant concern for First Nations, non-governmental organizations and Yukoners in general,” the strategy states.

There is no practice of pausing mineral staking in Yukon while land use planning processes take place, to the frustration of many Yukoners. The former vice-chair of the Dawson Regional Planning Commission called on the territorial government to implement such a moratorium while the much-anticipated Dawson land use plan process takes place but to no avail.

The impacts of placer mining are seen alongside the Indian River, near Quartz Creek, Yukon. The Indian River is heavily impacted by decades of placer mining which has not paused for development of the Dawson land use planning process. Photo: Malkolm Boothroyd / CPAWS Yukon

Panel recommends speedy 2023 legislative overhaul

The panel recommends the new mining legislation and regulations be completed by the end of 2023.

Ed Peart, president of the Yukon Chamber of Mines, doubts this will happen, telling The Narwhal completing this important work within this short time frame is a “lofty” goal.

“I have a hard time believing that’s achievable with the timelines they’ve outlined,” he said, adding that the Forest Resources Act overhaul took about six years to complete. “We’re talking about two acts that have tremendous impacts on every Yukoner.”

Lewis Rifkind, mining analyst for the Yukon Conservation Society, told The Narwhal that creating entirely new legislation in such a short period of time, while commendable, would be “too ambitious.”

“When we’re designing these new legislation and regulations, we should be thinking very long term,” he said. “This could last for the next century. If we think long term, we could actually get this right. I think everyone could benefit, whether it’s the environment, the various levels of government, the various groups of Yukoners and even the mining industry.”

Strategy suggests Yukoners should make more money from mining royalties

The Yukon government collects only a small amount of royalties from mining. 

During the last 10 years, for instance, placer and quartz royalty revenues collected by the Yukon government averaged less than $100,000 per year, the strategy states. During the same timeframe, the value of mineral production averaged roughly $335.4 million on an annual basis.

The panel is calling on the Yukon government to launch a review of mining policies to ensure there are fair and efficient royalty rates, tax exemptions and permit and licensing costs.

Implementing a tax on water is a potential avenue that could help increase royalty rates while possibly encouraging sustainable mining, the strategy states.

The panel recommended an adjustable tax rate that could reward operators for keeping water quality high at mining operations: “the higher the water quality, the lower the effective rate of tax.”

“The industrial water tax would for the first time place an economic value on Yukon’s water resources and provide a new resource revenue source to be shared with Yukon First Nations,” the strategy states.

Inspiration for an industrial water tax came from British Columbia, the strategy states. In that province, all licensed surface water and groundwater users are required to pay annual water rentals, Tyler Hooper, a spokesperson with the Ministry of Forests, Lands, Natural Resource Operations and Rural Development, told The Narwhal in an email. For example, a mine that uses 1.2 million cubic metres of water per year would be charged $2,500 annually, according to a provincial government strategy.

Rifkind said more detail is needed to understand how the water tax would work in Yukon.

“How will it be applied? Will it be different for quartz exploration to a quartz mine to placer mining?” he said.

Rifkind is also wary of the tax turning into yet another cost of doing business rather than a strategy to keep water clean. However, he added the fact that it has been included in the strategy is a welcome change.

“From a resource extraction point of view, there is essentially no charge for the amount of water that you use,” Rifkind said.

Regulatory simplicity and clarity is key to sustainable and profitable mining, panel finds

The panel pointed out that if the territory wants to receive higher royalties from development, existing mines need to be managed in a way that keeps them profitable and the mining sector needs to be supported in opening new, profitable and sustainable mines.

The key to attracting investment is “a transparent and predictable environmental assessment and regulatory system,” the panel notes. 

The report outlines strategies for an improved regulatory system, including eliminating duplication in the environmental assessment process, increased transparency around mining inspections, the establishment of standards for mining inspectors and ongoing engagement with First Nations and communities affected by mines.

The panel also recommends the promotion and regulation of mining be separated to avoid any conflict of interest within the department of Yukon Energy, Mines and Resources. 

The Faro Mine remediation in Yukon is one of the other looming projects for the federal government. Cleanup is expected to begin in 2022 at a cost of more than $500 million. Photo: Matt Jacques / The Narwhal

Panel recommends changes to securities for mine closure and clean up

During the public engagement process that informed the panel’s report, many Yukoners raised concerns about the legacy of mining in the territory.

“Environmental damage and ongoing threats to ecosystems as well as costs to the public purse to clean up abandoned mines were mentioned many times,” the report notes.

Many members of the public pointed to the owners of the abandoned Wolverine mine, who walked away from the project despite an ongoing need to maintain the property and prevent pollution of the surrounding landscape. The case underscores what many consider to be shortcomings of the territory’s bonding system, which risks foisting mining cleanup costs on taxpayers instead of companies. 

Yukon’s Faro mine is also considered one of the country’s most contaminated sites and is expected to cost more than $500 million in taxpayer dollars to remediate.

Read more: After the mining rush: a visit to Faro mine, one of Canada’s costliest, most contaminated sites

It appears the panel heard these concerns, calling on the Yukon government to implement progressive reclamation policies and recommending the government require “legally enforceable” mine closure plans that are bolstered by adequate security and bonding plans.

Modernized legislation should include a suite of powers that the Yukon government could enforce, including seizing security and bonding before there are mounting costs and requiring annual corporate profiles to determine a company’s financial stability, including its insurance coverage, the strategy states.

Yukoners are able to fill out a public comment survey on the draft strategy until Feb. 22.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

At the end of the 19th century, around the tail end of the Klondike Gold Rush, the chief of the Tr’ondëk Hwëch’in First Nation warned against the overhunting of the Fortymile caribou herd, a food source for local Indigenous communities that was then feeding an influx of hungry miners.

Chief Hä`hkè Isaac’s protest went unregarded, though, and within a few decades the once-mighty herd experienced a precipitous decline. 

Estimates of the herd’s population in 1920 put the number of Fortymile caribou as high as 568,000 animals. Just a decade later, that number dropped to roughly 10,000. By 1973, the herd hit a historic low of just 5,740 caribou. 

Incredibly, recovery efforts have seen a dramatic turnaround for the herd in recent decades. Due in part to voluntary hunting bans — the Tr’ondëk Hwëch’in haven’t harvested a caribou for more than 20 years — the herd is on the rebound. As of 2017, there were about 84,000 caribou in the Fortymile population.

The dramatic rise and fall of caribou numbers demonstrate how incredibly sensitive this migratory herd is to human activities, like hunting, road-building and mining.

That sensitivity is at the heart of a brand new Fortymile herd harvest management plan, developed by the Yukon Government and the Tr’ondëk Hwëch’in First Nation, that will carefully chart the population’s response to the reintroduction of the nation’s subsistence hunting, among other ongoing pressures.

Hunting actually has an important role to play because the herd’s dramatic increase in size isn’t all good news, Mike Suitor, a regional biologist with the Yukon government, told The Narwhal. “If you have too many animals in one patch of habitat, at some point or another, that’s not healthy.”

“With a herd like this, you need to be prepared to deal with the full range of the population because they do increase and decrease very quickly,” Suitor said. “And most herds go off the cliff when they decline.”

The new plan will help track both increases and decreases in the herd, he added, which will be critical moving forward, especially as the territory also has to co-manage the population with Alaska.

A map showing the location of the Fortymile caribou herd’s range. Map: Carol Linnitt / The Narwhal

Managed hunting is part of the solution for Fortymile caribou: government biologist

The issue of how many Fortymile caribou can be harvested — and by who — has been a fraught one for decades. 

The herd’s most recent range in Yukon is primarily found in the Tr’ondëk Hwëch’in First Nation’s traditional territory. In the 1990s, the nation asked its citizens to voluntarily refrain from killing any caribou.

In 1995, the Yukon government banned hunting Fortymile caribou for non-Indigenous hunters. At the time, the herd’s population was around 23,000.

Earlier this year the Yukon government opened two licenced harvests of the herd, angering the Tr’ondëk Hwëch’in, which called on the territorial government, twice, to cease all hunting of the herd until the harvest management plan was in place. 

The Yukon government’s hand may have been forced by the Alaskan government, with which Yukon coordinates management of the transboundary herd through harvest allotments. Alaska, concerned the herd was growing too big for its range, announced it would take Yukon’s allotment if the territory didn’t use it.

Tr’ondëk Hwëch’in Chief Roberta Joseph told The Narwhal the management plan is designed to ensure harvesting is done correctly, without impacting the herd’s health. 

“Licenced harvesting, as there was in the past, had actually gotten us into the position [of needing recovery] …  in the first place, because there was no control of scientific or Traditional Knowledge of the herd,” she said.

The new harvest plan has a specific goal of renewing the relationship between Yukon hunters and the Fortymile caribou “through incrementally increased harvest of the herd,” the document states. It also notes the herd’s population has rebounded to the degree that “everyone’s” harvesting needs in Yukon can be met.

That represents a significant departure from the no-hunting holding pattern that only recently started to be undone, Joseph said.

“We haven’t had a cultural and traditional relationship with the caribou for a long time,”  she said. “We have to regain that relationship and regain the knowledge and the stories from our Elders on the caribou.”

For the first time in two decades, the Tr’ondëk Hwëch’in organized a community subsistence harvest where families were encouraged to harvest a caribou along the Top of the World Highway, northwest of Dawson City, and share the meat with Elders.

The new harvest plan will expand monitoring efforts in order to shape when and where permit and subsistence harvesting takes place and when to introduce caps.

Keeping a careful eye on the herd

The goal, now that hunting is back on the table, is to stabilize the herd’s population until the caribou expand their ranges in Yukon, Suitor said.

The herd’s summer range, which stretches from north of Fairbanks, Alaska, to southwest of Dawson City, can’t sustain that many caribou for much longer, Suitor said. Year after year, the caribou arrive at the same place, which can gradually diminish their habitat until it’s gone. At worst, this can cause die-offs, he added.

“We think that there’s just too many caribou on the existing summer range,” Suitor said. “Quite often how these herds decline is an overuse of summer range.” 

 Hunting is part of the solution to stabilize the herd’s population in specific zones, Suitor said.

According to the new plan, licenced harvests will occur twice per year, from Aug. 1 to Sept. 9 and Dec. 1 to Mar. 31. The harvests can take place within a zone that includes the Top of the World Highway, along the Yukon River surrounding Dawson City and the Goldfields south of Dawson. 

This zoned “split hunt” was designed to ensure First Nations’ harvests aren’t interfered with, Suitor said. 

“We know that when a lot of caribou show up on a highway, and word gets out, it can get silly — I mean, a lot of people can come,” Suitor said. “We want to ensure subsistence harvesters aren’t impacted in any way, shape or form and they have the potential to participate in this hunt without being overcrowded.”

Caribou from the Fortymile herd congregate on a road in Yukon. Caribou spotted on the Top of the World Highway can draw large hunting crowds. Photo: Steve Hossack

Subsistence hunting can continue year-round without permits or caps.

If the herd starts to drop, however, “that’s where you want to maybe lay off harvesting,” Suitor said. “You want to do things like not harvest cows and maybe focus on bulls. What this plan allows us to do is address all of that — it gives us that ability to fluctuate, based on the condition of the herd.”

Monitoring human activity within the herd’s range

As a part of keeping tabs on the health of the herd, the Yukon government will roll out a series of new monitoring efforts. 

GPS Collars, for example, will be used to not only keep track of the caribou’s population and movement, but to assess the degree of habitat overlap with other herds in the region, including the Klaza and Porcupine caribou.

Human activity, identified as a “primary concern” when it comes to the Fortymile population’s health, will also be monitored in the herd’s range, particularly through tracking traffic volume.

The number and types of vehicles will be tracked in key areas, like the Top of the World Highway, to generate data on the “potential use of the area (e.g., mining, hunting) where possible,” the plan states.

There are a number of roads, mining and resource projects within the Fortymile caribou herd range.

The Yukon environmental and socio-economic assessment board recommended the Yukon government also track cumulative effects on the herd and report them to “ensure significant adverse effects do not occur from the culmination of individual projects in the range.” 

Following through with this goal will require ongoing habitat modelling assessment, along with tracking the ecological footprint of mining projects, the plan states.

A central tenet of the plan is that it remains flexible as it is implemented over the next year, Suitor added. That’s why the plan will undergo periodic reviews to determine whether any updates are needed. The first such review will occur in 2025. 

The Tr’ondëk Hwëch’in First Nation is able to harvest caribou from the Fortymile herd for the first time in more than 20 years thanks to recovery efforts. Photo: Steve Hossack

Co-management at the heart of new Fortymile plan

While the Yukon government has conducted research into the Fortymile caribou for years, these efforts will be expanded, with the help of Tr’ondëk Hwëch’in, Suitor said.

All harvest data, including the number and sex of animals, along with where and when they were killed, will be exchanged between the Yukon and Tr’ondëk Hwëch’in governments every year to make more informed decisions, he said.

Co-management lies at the heart of the management plan, with every decision made in lockstep with the First Nation, Suitor said.

“What’s new is the structure that we’ve built to come together to analyze that data together and then make decisions,” he said. “We’ve always had dialogues, but it’s formalized now. Everyone knows what to expect, when to expect it. It allows us to make sure we’re doing things right and that we’re doing it together.”

Joseph said it’s crucial each government is aware of the herd’s overall health and what could be affecting it. This makes the sharing of information so important, she added.

“The agreement provides to work together collectively to review the indicators on the health of the herd,” Joseph said, adding this allows for informed decisions. “It gives a more comprehensive determination of cooperative management of the herd.”

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Scotiabank is the fifth bank in Canada to publicly refuse to bankroll industrial development in Alaska’s Arctic National Wildlife Refuge, the institution announced in a new policy released Monday.

“Scotiabank will not provide direct financing or project-specific financial and advisory services for activities that are directly related to the exploration, development or production of oil and gas within the Arctic Circle, including the Arctic National Wildlife Refuge,” the bank said in a statement.

Scotiabank joins the rest of Canada’s major financial institutions, including Royal Bank of Canada (RBC), Toronto Dominion (TD), Bank of Montreal (BMO) and Canadian Imperial Bank of Commerce (CIBC), in vowing not finance development in a roughly 1.6 million-acre oil-rich parcel of the refuge known as the coastal plain. 

The largest national wildlife refuge in the United States, the protected area is home to myriad sensitive species, including polar bears and the Porcupine caribou, a culturally sacred animal to the Gwich’in Nation and transboundary herd that undertakes one of the largest land mammal migrations on Earth.

The banks’ commitment comes as the Trump administration moves ahead with controversial plans to sell off oil leases in the development area early next month before president-elect Joe Biden takes office on Jan. 20, 2021. Biden campaigned on a pledge to permanently protect the refuge, calling Trump’s move to open the area to oil and gas development an “attack on federal lands and waters.”

All of Canada’s major financial institutions have now vowed not to finance development in the Arctic National Wildlife Refuge. Photo: Matt Jacques / The Narwhal

That all major Canadian financial institutions have agreed to not fund oil and gas drilling in the refuge is a testament to advocacy work by First Nations and conservation organizations, Dana Tizya-Tramm, Chief of the Vuntut Gwitchin First Nation, told The Narwhal.

“Scotiabank is respecting our people’s vision, you know, RBC is listening to my Elders, Bank of Montreal values our children growing up on caribou,” he said. “They see the value in this iconic herd.”

“I think the financial institutions have sent a very large signal to the rest of the world,” Tizya-Tramm said.

And while many are embracing the banks’ Arctic pledges, observers continue to note that Canada’s  banks remain heavily invested in fossil fuels. A report by the Rainforest Action Network released earlier this year, for instance, found Canada’s five major banks were among the world’s top financial backers of fossil fuel development.

Major U.S. banks pledged not to fund oil and gas drilling in refuge

The Gwich’in Steering Committee, which represents Gwich’in in the U.S. and Canada, spearheaded efforts to pressure U.S. banks against funding development in the refuge in 2018. 

Earlier this year, five major U.S. banks, including Goldman Sachs, Wells Fargo and J.P. Morgan Chase, pledged to not finance development in the refuge.

That likely influenced Canadian banks, said Malkolm Boothroyd, campaigns coordinator with the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS), which has been calling on Canadian institutions to drop funding for oil and gas development in the refuge since December 2019.

The announcements from Canadian banks comes on the heels of similar pledges from five major U.S. financial institutions, including Goldman Sachs, Wells Fargo and J.P. Morgan Chase. Photo: Matt Jacques / The Narwhal

“There are so many reasons for oil companies to be wary of pursuing leases in the Arctic refuge,” he said, noting the high costs of doing business in the remote region and skepticism over whether there’s actually enough oil available to warrant industry incursion. 

Every time a bank comes out with a new policy to avoid funding development, that adds yet another reason for companies to steer clear of the refuge, Boothroyd said.

In October, RBC, the largest bank in Canada, became the first financial institution to refuse to fund development in the refuge.

“Due to its particular ecological and social significance and vulnerability, RBC will not provide direct financing for any project or transaction that involves exploration or development in the ANWR,” RBC’s updated policy guideline states.

These announcements should act as a warning to companies regardless of the politics of the day, Boothroyd said.

“The financial world is lining up and saying that they wouldn’t provide a dime to these kinds of projects, so hopefully that will make any company think twice,” he said.

‘They’re respecting our human rights as Indigenous people’

To Bernadette Demientieff, executive director of the Gwich’in Steering Committee, the message from Canadian banks is clear: “It shows that more and more people are listening to the Indigenous voices, that they’re respecting our human rights as Indigenous people,” she said.

However, the fight to protect the refuge is far from over, she added.

Map showing overlap of 1002 area lands and the Porcupine caribou herd range. Map: Carol Linnitt / The Narwhal

Indigenous leaders are increasingly shifting their focus to insurers, Demientieff said. Without the support of insurance companies, prospective companies would have no safeguards in place should they encounter financial pitfalls.

Ensuring that Biden makes good on his promise to permanently protect the refuge is another priority for the committee, she added.

Biden made several campaign commitments to increase protections for the Arctic, including a moratorium on offshore drilling in the Arctic Ocean and prioritizing climate change at the Arctic Council, an intergovernmental body that seeks to address problems faced by people who live in the area. 

There are also several lawsuits fighting the Department of the Interior’s handling of the environmental assessment process. CPAWS Yukon, along with 12 others, allege that the Department of the Interior “broke the law by disregarding the refuge’s original purposes and failing to safeguard those purposes through the design of its oil and gas leasing program.”

Porcupine caribou cover the valley of the Hulahula river in the Brooks range mountains of the Arctic National Wildlife Refuge. Photo: Matt Jacques / The Narwhal

The National Audubon Society and the Center for Biological Diversity, among other U.S. groups, also launched a lawsuit against David Bernhardt, the secretary of the Department of Interior, who signed off on the record of decision.

And in September, attorneys general of 15 states sued the Trump administration, saying the move to open up part of the refuge to development “fails to fully evaluate and consider the devastating environmental impacts.”

“We’re not giving up, we’re gonna keep pushing,” Demientieff said. 

“This isn’t a job for us. We can’t go home at 5 o’clock and turn it off. This is our way of life. This is our identity. This is our food security, and we are spiritually and culturally connected to our lands, water and animals.”

“We are up against a very tough battle,” she continued. “We are up against a lot of money, but I really truly believe in my heart what I’m fighting for and I’m a strong believer in the power of prayer and I do believe we are going to stop this.”

‘We don’t want another Standing Rock’: Chief

Tizya-Tramm said his nation’s decision to bring advocacy efforts to financial institutions and corporate boardrooms was, in part, to keep citizens safe.

The refuge provides crucial habitat to the Porcupine caribou, a culturally important herd to the Gwich’in, who have relied on them for subsistence purposes from time immemorial. The Gwich’in, who live in Yukon, Northwest Territories and Alaska, refer to the refuge as “the sacred place where life begins.”

“I do not want to see our people having to go out onto the highways, set up picket lines and block machinery from going into this area,” Tizya-Tramm said. “Our people would be met with military, rubber bullets, pepper spray and dogs.” 

“We don’t want another Standing Rock,” he said, referring to the 2016 gathering of thousands of opponents of the Dakota Access Pipeline, which threatened water used by those on the nearby Standing Rock Sioux reservation. 

The event became a flashpoint issue for Indigenous Rights across the continent.

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