In Dawson City, Yukon, you can get a Chinese buffet at Gold Village before picking up a few essentials at the Bonanza Market. A block away, across from the river, you can get some Yukon gold from the Klondike Nugget & Ivory Shop.

Despite the hand-painted signs and old-timey decor, the turn-of-the-century gold rush isn’t just a memory here. Two reality TV shows, Gold Rush and Yukon Gold, chronicle the ongoing search for gold in the region, while unprecedented numbers of mines are digging up riverbeds and wetlands.

The gold rush, it seems, is in full swing: the Yukon Geological Survey pegged total placer mining production at $94 million in 2017, an amount comparable to the peak production during the Klondike.

The name Klondike itself derives from a mispronunciation of the word Tr’ondëk, which loosely translated refers to a part of the river.

And when it comes to the Tr’ondëk Hwëch’in First Nation — from whose territory this bonanza is being extracted — one might assume a major windfall.

Yet that’s far from reality.

According to the First Nation, their share of the gold mining royalties last year was around $65 — not quite enough to buy a tank of gas at the station next to the Bonanza Gold Motel.

“The amount is still in 1906 legislation,” explains Tr’ondëk Hwëch’in chief Roberta Joseph. “It’s still back in the Wild West.”

Indeed, the royalty system laid out in the Yukon Placer Mining Act seems so outdated as to be almost comical:

“There shall be levied and collected on all gold shipped from the Yukon a royalty at the rate of two-and-one-half per cent of its value,” it reads.

“Gold for the purpose of estimating that royalty shall be valued at fifteen dollars per ounce.”

Fifteen.

Dollars.

Per.

Ounce.

That’s like estimating the value of a television at $5.

At the time of writing, the spot price of gold was $1,566 per ounce, 100 times higher than it was a hundred years ago when the legislation was written.

“It’s a joke,” says Lewis Rifkind, Mining Analyst at the Yukon Conservation Society. “The Yukon gets more in campground fees than in placer mine royalties.”

Incredibly, Rifkind is downplaying the discrepancy.

Yukon statistics show the government brought in $26,715 in placer mining royalties in 2017.

Camping fees from non-residents alone amounted to $348,000 — more than ten times as much.

“In the Yukon we’ve been mining gold for over 100 years and we are still dirt poor,” he says. “We have all this wealth, and year after year we give it all away.”

The “royalty” isn’t even really a royalty in the conventional understanding, as in, a levy collected on a resource.

As the Act states, the Yukon’s royalty is only collected on gold dust or bars shipped from the territory — which, when it was written, was probably most or all of it. Today, with jewellers right in Dawson City making and selling products for the ever-growing throngs of tourists, not so much.

Each ounce of gold dust or bars being exported from the Yukon nets the government (and, eventually, Tr’ondëk Hwëch’in First Nation) 37.5 cents. If it’s sold to gold buyers in Dawson, the First Nation gets nothing.

River rocks are piled high after being sorted and dumped during placer mining operations. Photo: Jimmy Thomson / The Narwhal

Old rusting machinery crowds the road heading into Dawson — but deeper into Tr’ondëk Hwëch’in territory a new gold rush is growing. Photo: Jimmy Thomson / The Narwhal

‘Ignorance, greed and envy’

The Alberta royalty rate is 200 times higher than that in Yukon; B.C.’s is 20 times higher.

A report from the Financial Advisory Panel in 2017 pointed out that the 37.5 cents per ounce the government gets from placer mining doesn’t even manage to recover the costs of supporting the placer mining industry.

It recommended that the government review its royalty rates and maybe institute a system like that in Alaska. There, less successful miners pay no royalties and others pay a royalty that reflects modern prices.

The Klondike Placer Miners’ Association retorted with a fiery open letter from its president, Mike McDougall —  which was sent to The Narwhal in response to an interview request — blaming “ignorance, greed, and envy” for the public desire to up the royalty rate.

The association received $120,000 in transfers from the Yukon Government in 2017-18, according to the advisory panel report.

Premier Sandy Silver, who has lived in Dawson City for nearly 20 years, ran in the Klondike riding on a promise not to raise the royalties — and steadfastly stuck to it.

“The placer miners are a pretty powerful lobby,” according to Rifkind.

But it’s more than that, he says. There’s a happy old-timey gold panner on Yukon licence plates. People like to refer to placer mining as “the Yukon equivalent of the family farm.”

Placer mining is ingrained in the territory’s culture and collective psyche, and it’s a way for small-scale operators to get into mining without facing the extreme costs associated with starting a larger mine.

“Sometimes we in the environmental movement tend to overlook that,” he admits.

Growing disturbance

That $65 the Tr’ondëk Hwëch’in received last year came with real costs to the environment.

“You basically have to destroy the stream that the gold is in,” Rifkind says.

The rounded riverbed stones piled high into miniature mountains along the Klondike Highway tell the story of how that damage comes to be: placer miners scoop up the rocks and gravel from current and historical riverbeds, sort through them for gold, and dump the waste rock, or tailings, as they move along.

“Such mining can gut invaluable riparian areas and can severely and permanently damage streams, devastate fish, and threaten human health,” wrote the University of Victoria Environmental Law Centre in a letter to the B.C. Auditor General last year.

“It can interfere with traditional hunting, fishing and gathering practices and infringe Indigenous rights.”

A 2002 study found that as many as five per cent of Yukon streams have been affected by placer mining, which “has resulted in extensive changes to stream channel morphology and stability.” Digging up the river kicks up silt, choking and smothering downstream plants, insects and fish. Fish have trouble moving, feeding, reproducing and growing in water with even low amounts of sediments hanging in the water.

“There are some creeks that have been disturbed to the point where there’s not an ability to use it for drinking, or spawning for fish,” Joseph says.

The so-called “Yukon equivalent of the family farm” often takes the form of large-scale, irreversible disturbance to the landscape. Photo: Sebastian Jones / Yukon Conservation Society

Placer mining also disturbs the habitat of the riverbanks, the fragile and extremely productive riparian areas that the Environmental Law Centre says house two-thirds of Canada’s rare and endangered species.

And they don’t just come back. The same 2002 study found that vegetation had a hard time growing once placer mining had moved through because of the lack of fine sediments.

Any return to normalcy, it found, “could take many decades to centuries.”

The growth in the industry in recent years — driven in part by high gold prices as well as the notoriety from the reality TV shows — is unprecedented. The Yukon Geological Survey counted 25,219 placer claims in good standing in the territory, “which is the highest number of claims dating back to 1973 when our records were initiated.”

Rifkind says the government has been doing a good job of keeping on top of the growth in mining, enforcing its existing laws. But those laws, he says, don’t go far enough to mitigate the damage inherent to the industry.

“The actual placer mining activities recently have been quite well enforced and monitored, but it doesn’t get away from the fact that it’s still placer mining.”

According to the Klondike Placer Miners’ Association, there were 159 active placer mines in the Yukon as of last year. Joseph estimates that 85 to 90 per cent of them are in Tr’ondëk Hwëch’in territory.

“They think this is place they can come and get rich,” she says.

‘Mined areas are even more unique’

A sign overlooking the Klondike River describes the rapid change that took place in the Tr’ondëk Hwëch’in traditional territory when the gold rush began:

“Within two years, Tr’ochëk had changed beyond recognition. Gone were the fish racks, salmon traps and cooking hearths. Now there was a dense clutter of tents and cabins, a sawmill, a brewery, saloons, stores and the one-room cribs of prostitutes.”

Today the renewed frenzy is once again making its mark on the landscape. In the Indian River wetlands south of Dawson City — where half the territory’s placer gold comes from — the Tr’ondëk Hwëch’in say their territory is becoming unrecognizable.

“Peat and fen wetlands that took thousands of years to develop are now at risk of being wiped out in only a few years,” the First Nation wrote in a letter to Carolyn Bennett, Minister of Crown-Indigenous Relations.

They are asking for a study of the cumulative impacts of placer mining before another project is approved.

“The river and its tributaries were heavily staked by placer miners in the 1980s and 1990s; today, licensed operators in the valley are among the top producers of placer gold in the Yukon.”

The letter stresses that cumulative impacts haven’t been taken into account by individual licence application processes, and now, an as-yet unmined part of the wetland is being considered for mining.

Individual developments, taken together, have been transforming the Indian River wetlands for decades.

As they are, the wetlands produce clean water, habitat for game animals, endangered species and other wildlife, flood control, sinks for pollution, as well as cultural values like hunting, fishing, trapping and tourism. It’s the only major wetland area in Tr’ondëk Hwëch’in territory.

“We consider that the overarching benefits of intact wetlands…to the many within the Dawson community, including First Nations citizens, outweigh the financial gain to the few private industry operations mining gold from wetlands,“ reads a letter to the Yukon Water Board asking for a public hearing to discuss the current mine proposal.

According to the First Nation, the Indian River itself used to be salmon habitat. Salmon no longer spawn there.

Reclamation of wetlands is unproven and expensive, and in its submission to the water board, an engineering firm hired by the proponent said as much.

“The expectations…have to be tempered with what is physically achievable and what is economically feasible for family-based Yukon placer mining operations,” the firm wrote, referring to oilsands mining projects, where attempts at rebuilding bogs and fens has yielded mixed results. “It would be incredibly expensive, frustrating and imprudent to attempt to reclaim post mined sites to peat land wetlands given the high likelihood of failure.”

Security is rarely collected against the costs of cleanup in case a company is not able or willing to complete the remediation — but Rifkind says remediation in many cases would be an extreme undertaking regardless given the way placer mining turns ecosystems quite literally upside down.

“It’s almost impossible to do effective reclamation,” he says.

Stuart Schmidt, a local supporter of the placer mining industry who describes growing up hunting and trapping in the Indian Creek area, wrote a letter in support of the project for the water board.

“I understand the concern expressed by many people who feel that there is enough mining in the Indian River Valley and that it should come to a stop,” Schmidt wrote. “They argue that the Indian River is unique. That is true, all areas are unique but the mined areas are even more unique.”

Lawsuit could be considered

The Tr’ondëk Hwëch’in say they are in the midst of negotiating with the Yukon Government to update the Placer Mining Act.

Legislative reviews that were promised as part of devolution, which concluded in 2003, have not resulted so far in any update to the Placer Mining Act or the royalties associated with it.

When the government declined to update the royalties, it instead updated the way it splits royalties with the First Nations. That brought the total amount of royalties, to be divided among 11 Yukon First Nations, to $36,110.71. To sweeten the deal, the government kicked in a one-time “gesture” payment of $600,000, also to be split between all 11 First Nations.

After years of sitting alone at the bargaining table, and without any progress on an actual increase in the returns on placer mining and an evaluation of its cumulative impacts on the land, Joseph says the First Nation may consider legal action.

“The Tr’ondëk Hwëch’in have given up millions and millions of ounces of gold,” Joseph says. “When we have an agreement we all have to be acting in good faith to ensure that we all benefit in good faith.”

Correction: An earlier version of this story suggested that legal action is being considered by the Tr’ondëk Hwëch’in First Nation. The First Nation has clarified that it is not currently considering a lawsuit but that it may consider such action if the Yukon government does not pursue further changes to the Placer Mining Act.

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.

The long-awaited Supreme Court verdict on the Peel Watershed case is finally here.

In a unanimous ruling, the highest court in the country decided that three Yukon First Nations and two environmental organizations were correct in their push for a lengthy land-use planning process to be maintained and only rewound to the point where the government can conduct final consultations.

It’s been a lengthy and complex case. So what does today’s decision really mean?

The Supreme Court’s ruling sets a huge precedent for all future land-use planning in Yukon, as well as anywhere in Canada where a modern treaty has been established.

It’s also a serious reminder to governments that they can’t make unilateral decisions against the interests of Indigenous communities when there are clear processes in place.

At a press conference in Ottawa, Vuntut Gwitchin Chief Bruce Charlie said his government is “extremely pleased with the landmark decision, which benefits all Canadians, Indigenous people across the country and the wildlife. The highest court in Canada has ruled in favour of this protection and it could not come at a better time.”

“This region is almost a pristine region,” said Chief Roberta Joseph of the Tr’ondëk Hwëch’in First Nation during the press conference. “It has beautiful, clear, sparkling rivers where we can go and drink the water from. There’s a lot of food on the land for us: our people use it for food, we harvest medicines. One of our elders always says ‘this is our university and our hospital.’ That’s what’s at stake here.”

Yukon Conservation Society executive director Christina Macdonald added: “Today is a victory for the land, for the water, for democracy and the people. And it’s something we should all be very proud of.”

Yukon Government Botched Collaborative Land-Use Planning Process

The Peel Watershed Planning Commission worked for seven years to produce a land-use plan. In the end, it recommended that 80 per cent of the region be protected from industry: 55 per cent permanently protected, and another 25 per cent temporarily protected.

A 1993 Yukon agreement required all land-use planning in the territory proceed in a very specific way, with a bulk of the work done by a regional planning commission comprised of nominees from impacted First Nations and the territorial government.

But instead of following that agreement, the Yukon government came up with an entirely new plan: one that only protected 29 per cent of the Peel from industrial development. That outraged many Indigenous and environmental groups, who took the government to court to ensure the process was honoured.

Both lower courts ruled that the territorial government had messed up badly. Today, the Supreme Court of Canada agreed with that.

The real question that was addressed in today’s ruling concerning appropriate legal remedy was specifically, to which point in the land-use planning process should the government be required to return? The Yukon Court of Appeal ruling had rewound things too far back, according to the First Nations and environmental groups, giving the territorial government an effective “do-over” and unfair control over the process.

“The remedy that the court appeal granted really created a lot of uncertainty and undermined the integrity of those collaborative processes,” said Jeff Langlois, lawyer at JFK Law and counsel for Gwich’in Tribal Council, which intervened in the court challenge.

Supreme Court Agreed With Trial Judge, Reverting Process to Later Stage

The Supreme Court effectively overturned that decision, returning the process to where the Yukon government must conduct a final consultation.

That’s considered to be excellent news by the First Nations and environmental groups, as it keeps the original plan and multi-year process intact and requires the government to honour the original process. However, the government can still feasibly reject the Final Recommended Plan after consultations, as the Supreme Court declined to provide an interpretation on that.

“It’s an open question as to whether Yukon can reject this plan, I think is the right way to read this decision,” Langlois said. “I think it’s a partial victory for Yukon in that they’ve erased that part of the judgment.”

However, if the government did reject the plan, it wouldn’t be able to simply come up with its own; instead, it would have to restart the multi-year collaborative process. In addition, the recently elected Yukon government has pledged to accept the Final Recommended Plan. That commitment is arguably a significant part of why the Yukon Liberals won the territorial election in 2016.

The government appears ready to follow through on that commitment.

“This is a victory for all of Yukon,” Yukon Premier Sandy Silver said in a press conference following the ruling. “We believe that when people look back at this moment in time, they’re going to see this as the beginning of a new era, one that’s based upon reconciliation.”

Things might get especially interesting in the coming months.

The #PeelWatershed ruling was unanimous and long in the making. But what’s next? https://t.co/rlYbJdcFiE

— DeSmog Canada (@DeSmogCanada) December 1, 2017

What Can the Government Still Change?

The plan can still be modified following consultations, so long as the modifications aren’t so extreme that it would constitute a rejection of the plan.

However, modifications must have either been proposed during the collaborative land-use planning process or result from something that can be justified based on things that emerged since the plan was released, such as new scientific studies or recognition of a particularly vulnerable part of the region.

Langlois said that will likely rule out any “monkeying around with the fundamental mix of protected areas versus areas open for development,” such as was originally proposed by the former government, but leaves open the opportunity for both government and First Nations to create an even better plan.

“Any modification is going to be subject to that broad scrutiny: is imposing that modification in compliance with the honour of the Crown?” he said. “Is it consistent with their obligations under this collaborative process? It’s not a real black-and-white thing. It’s going to take a lot of thinking about.”

Ruling Potentially Sets Precedent for Modern Treaties Across Canada

This ruling isn’t limited to the Peel Watershed.

For one, it will serve as the foundation of any land-use planning process that goes ahead in Yukon. But its impact will also be felt across the country, potentially serving as a significant precedent for all modern treaties and collaborative processes of its kind.

“Really, what the court is saying is when a provincial or territorial government can say ‘yes’ or ‘no’ to land-use and other environmental decisions under a final agreement, that has to be in a way that gives life to the objectives of the treaty,” said Micah Clark, a lawyer who represented the environmental groups and First Nations, at the press conference. “And here, what they said the objective of the treaty was is that this is a collaborative process.”  

Langlois pointed to the Gwich’in Renewable Resources Board and ongoing land-use planning processes in Nunavut as examples of what might impacted by this decision.

Lawyers didn’t provide a timeline for next steps in the process, suggesting that the First Nations and environmental groups be given a few days to celebrate the decision. But it’s abundantly clear that people are in the struggle for the long haul.

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.

The fate of the Yukon’s Peel Watershed — one of the most pristine wilderness areas in Canada and home to four First Nations — will be decided by the Supreme Court of Canada on Dec. 1.

What lies in store for the Peel will be determined by future land-use planning in the territory and whether and how those plans grant industry access to the undeveloped region.

In 2014, the previous territorial government tossed out the lengthy work of an independent land-use planning commission that recommended protecting 80 per cent of the region from industry and roads, replacing it with one that only protects 29 per cent of the region.

ICYMI: Battle to Protect Northern Yukon, Home of Pristine Peel Watershed, From Industry Heads to Supreme Court

Two lower courts both agreed that the government seriously erred in doing so. The question being resolved by the Supreme Court is what stage in the planning process things must return to.

The plaintiffs — three First Nations and two environmental organizations represented by legendary lawyer Thomas Berger — contend that rewinding the process too far back will give the government an unfair do-over and set a dangerous precedent for future land-use battles.

To help try make sense of the situation, DeSmog Canada interviewed David Loeks, who served as chair of the six-member independent land-use planning commission. This interview has been edited for length and clarity.

In 2014 the Yukon Government decided to effectively throw out the plan and come up with its own, which only protected 29 per cent of the Peel as opposed to 80 per cent. Did that come as a surprise to you?

All through the planning process, we had shown the evolution and direction of our thinking. And the Yukon Government said, basically, “yup, ok, no worries, carry on.”

When we had written our recommended plan and we did it in good faith.

It’s at the 11th hour and 59th minute, after we had fielded the recommended plan and were now ready to draft the final recommended plan… the Yukon Government comes in with bunch of very routine things…[including] two very key [concerns], which were posed in inoperative language like “we want to see more balance” and “we want you to rethink your access provisions.”

At that stage in the planning process, the Umbrella Final Agreement required that review comments be actionable and strictly referenced to the text. These were neither. We more-or-less had to say that if we were to take these substantively, we’d have to back way, way up in the planning process. We’d have to go back two years or so. So we more-or-less carried on writing the plan as we did, saying “these are inoperative review comments.”

Meanwhile, by this time there is data that between 75 and 80 per cent of the Yukon wanted highly protected landscape. The First Nations wanted it 100 per cent protected. So there’s a lot of push towards the kind of plan we were drafting.

ICYMI: PHOTOS: Documenting the North’s Mighty and Threatened Peel Watershed

What happened next?

The Yukon Government is obligated by the UFA to take that plan out for review. This is where things left the rails.

They didn’t do that. Rather than taking the commission’s plan out for review, they cooked up their own plan. Rather than using the five-year process that we had, they did it in a backroom in three-and-a-half months out and pulled it out and went “tada.” And they claimed — rather than an illegitimately done, backroom, in-house plan — that they were only modifying the commission’s plan.

It was a stunning bit of misrepresentation. Then, they proceeded to take that out for review. Not the commission’s plan — the one they cooked up.

At that point, a number of parties were starting to cry foul. I more-or-less said there was nobody here speaking for the commission. So I adopted a public role of speaking in public, writing editorials, giving interviews and adding my voice to the other ones.

I was speaking for what the commission had in mind and what we were thinking. The public pressure really, really mounted and culminated in this lawsuit, and eventually brought the government down.

How has it felt for you, watching from the sidelines after doing so much work?

The government had been unequivocally reprimanded by the courts. So I thought, “ok, our position is well founded.”

If the Supreme Court comes in favour of the plaintiffs, you can pretty well be assured that the Peel plan will get adopted. If it sides in favour of the government, we’ll have to take at face value and hold him to it, Premier Sandy Silver’s statement that he will, regardless of what the courts have to say, accept and adopt the final recommended plan.

One will have more teeth behind it. The second is going to rely on the integrity and character of Mr. Silver. At this stage, there’s no reason to question that. I’m extremely hopeful that the final recommended plan will be adopted and if the plaintiffs lose their case and if Mr. Silver and the Liberal Party reneged on a very clear promise, then I guess you’d have to say “watch out” as society won’t let that lie.

“In a representative democracy, our parliamentarians like to believe that they are both anointed and uniquely gifted for knowing what the public interest is. History shows that’s not really true.” https://t.co/aFY1muiipB @ProtectPeel #cdnpoli #yukon #Y2Y @CPAWSYukon

— DeSmog Canada (@DeSmogCanada) November 28, 2017

What are some important takeaways from this experience?

Planning, if properly done, is radically democratic.

People should be informed and weigh in and should weigh in a meaningful way. I found having good survey data that showed what the public wanted was really important.

In a representative democracy, our parliamentarians like to believe that they are both anointed and uniquely gifted for knowing what the public interest is. History shows that’s not really true.

Very often, our political apparatus really ends up being the handmaiden to particular interests, often resource development industries.

I’ve been left with the really firm belief that when it comes to making fundamental decisions about how is our landscape going to look over time, you shouldn’t leave that to technical experts.

Commissioners, who after all aren’t elected but appointed, are citizens trying to do a good job. And the critical question all the while is ‘are we on the right track here?’ That’s what a planning commission is trying to figure out. If someone was to say ‘what’s the public interest?’ then let’s ask them as opposed to saying that you’ve been elected by them and will speak for them.

It’s made me more committed to participatory democracy than ever. That’s really what land-use planning needs a healthy dose of.

We did our planning process saying “we’ve got to have a lot of public meetings and consultations.”

There is a huge contrast between what we did and what the government did in their process. Government held open houses, and an open house can be okay but it’s really easy to make it fundamentally dishonest because nobody knows what the sense of anybody’s interests are other than the folks who run the open house.

In a public meeting, where you can actually have statements by the public and debates, you can see how things start to look. That’s a chance for the public to interact with each other as well as with the commission. These kinds of things really are profoundly democratic and really important.

That was one of the things I found was intellectually dishonest about the way the government had presented their pseudo-plan.

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.