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A draft of the much-anticipated land-use plan for the Yukon’s 40,000 square-kilometre Dawson regional planning area — a sensitive and vibrant northern landscape of cultural importance to the Trʼondëk Hwëchʼin First Nation — is due to be released June 15 by the Dawson Regional Planning Commission.
Comprised of salmon-rich rivers, vital caribou habitat and wetlands, which support a wide variety of species from cranberries to moose, the Dawson region is also ground zero for the territory’s bustling placer mining industry, raising questions about how and how much of the landscape should be protected from ongoing and future development.
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Under Yukon’s 1990 Umbrella Final Agreement, Yukon is obligated to craft landscape plans in partnership with First Nations to determine the nature and extent of natural resource management and industry in First Nations territories.
In part because of industry interests, the Dawson land use plan has dragged along for many years as mining has carried on in sensitive riverbeds and wetlands. Already the process has hints of the conflict between the mining industry and conservation efforts that stymied the Peel watershed regional land use plan, which ended up being hashed out in the Supreme Court of Canada after a 15-year legal quagmire.
At the heart of concerns surrounding the fate of the Dawson is the high level of placer mining operations already taking place in the region, and how legacy mining claims grandfathered into the region will impact land use plans going forward.
Roberta Joseph, Chief for the Trʼondëk Hwëchʼin, says just like with the Peel Watershed, when the Dawson planning process began, there was already a “high level of staking taking place.”
Despite repeated calls from the Trʼondëk Hwëchʼin, other First Nations and conservationists, mineral staking has been and still is permitted in the Dawson region, Joseph says, adding her government had been vying for a number of mining withdrawals for different areas in its traditional territory. But Joseph says despite repeated calls for these withdrawals — and some small, late concessions — the discussion with the Yukon government about potential no-go zones for mining just “hasn’t evolved.”
If the protracted legal battle over the Peel demonstrated anything, it’s that mining withdrawals hold the power to make or break land use plans.
When the Peel plan was first drafted, it came with a recommendation to protect 80 per cent of the watershed from industry. That recommendation was scrapped by the then-Yukon Party government, which floated a new recommendation to protect just 29 per cent of the area from development. The proposal enraged Yukon First Nations and environmentalists, fuelling a legal battle that was eventually resolved in 2017 in a landmark Supreme Court ruling. The judges found that by reducing the amount of conserved areas in the Peel’s land use plan, the territorial government had failed to honour its Treaty obligations to First Nations.
Planning for the Dawson region began as negotiations for the Peel were already underway, with a commission first engaging in the planning process between 2010 and 2014. But the Dawson process was put on the backburner while the Peel challenge played out.
The Dawson Region Planning Commission was reestablished in November 2018 and has been working ever since on a much-anticipated draft plan. The delays in the process have contributed to tensions around the ongoing level of mineral staking and mining projects that have continued unabated in the Dawson region for the last decade.
Pleas for a pause on claims staking and exploration have gone unheeded, raising questions about how the Dawson planning process will avoid the pitfalls of which beleaguered the Peel plan. Those questions were heightened when Art Webster, the former vice chair of the planning commission publicly resigned. He told The Narwhal the resistance to pausing industry “defeats the purpose of having a land planning process.”
In response to concerns from environmental groups and First Nations, particularly the Trʼondëk Hwëchʼin, the government finally agreed in March to preemptively withdraw approximately 12 per cent of the Dawson planning area from staking — but noted the moratoriums are temporary, pending recommendations from the planning commission.
Environment minister Pauline Frost said the withdrawals were designed to bring down tensions surrounding what will be mined and what will be protected in the Dawson.
“This will minimize future land-use conflicts in areas that are likely candidates for conservation,” Frost said in a statement.
“Compared to the Peel process, (the) Government of Yukon acted more quickly in placing staking withdrawals,” in the Dawson, Yukon Department of Energy, Mines and Resources representative Rachel Veinott-McKeough told The Narwhal via email.
Some onlookers, however, feel this gesture lacked the necessary gusto — and timing — to make much difference in the overall process.
It’s “far too little, and too late,” Webster said of the withdrawals in an interview with Yukon News.
A day after the withdrawals were announced, the Yukon branch of the Canadian Parks and Wilderness Society (CPAWS) expressed its disappointment, calling it a “failure to implement meaningful withdrawal … which echoes the mistakes made during the Peel Watershed planning process.”
“Going into this plan, we had really hoped — no, actually, we had really expected — that the government wouldn’t repeat the same mistakes it had made in the Peel Watershed, where staking wasn’t withdrawn until well into the planning process,” Randi Newton, conservation coordinator for CPAWS, told The Narwhal.
“Unfortunately, the lesson hasn’t been learned.”
Jocelyn Joe-Strack, Daqualama, Indigenous research chair at Yukon University and a member of the Wolf Clan of Champagne-Aishihik First Nation, shares the sentiment.
“I do not have confidence that the Dawson planning process, and the upcoming Dawson draft plan, will have honored the spirit and intent of the Umbrella Final Agreement,” Joe-Strack says. “And I do believe it will be a repeat of the Peel.”
By allowing staking up to and during the planning process, the Yukon government is providing a way for mineral claims to be “grandfathered” in, Sebastian Jones, long-time West-Dawson resident and fish, wildlife and habitat analyst for the Yukon Conservation Society, tells The Narwhal. This fundamentally shapes how land use plans and protected areas are laid out, he says.
The government’s reluctance to institute staking moratoriums prior to land-use planning goes all the way back to the creation of Tombstone Territorial Park, which was officially designated in 2000, he says. During this time developers, fearing potential withdrawals, began a “flurry” of staking in the area.
“That was the first time we saw mineral claims being staked during a planning process,” Jones says. “It actually changed the shape of Tombstone Park, because this is one of the first times the mineral industry was looking at land being alienated from mineral exploration and development.”
Jones says that while the government was “progressive at the time,” but “by the time they got their poop in a group and withdrew (Tombstone) from staking, the damage had already been done.”
“There are still active claims in Tombstone and they’re a running sore” in the park, which is located within the Dawson regional area, Jones says.
Given this history — and the fact that much of the area around Dawson City proper is already heavily staked — it wasn’t a “massive ask” to withdraw areas from staking in the Dawson region while the plan was being developed, Jones says.
“I really don’t understand why the Yukon government was so reluctant to make these withdrawals.”
More recently, the direct impact of continued staking has flared up in the Antimony Creek area, next door to Tombstone. Prior to the government’s temporary withdrawal, both the Trʼondëk Hwëchʼin and the First Nation of Na-Cho Nyäk Dun cited serious concerns around a proposed quartz exploration project at Antimony Creek, located in both nations’ traditional territories. Both nations have said the area is of high cultural and subsistence importance to them and that they consider permitting new development on their lands before the Dawson land use planning is complete to be a violation of their Treaty Rights.
Their concerns triggered a pause on the project and a request for more information has been sent from the Yukon Environmental Socio-economic Assessment Board (YESAB) to the project’s proponent, Dawson City-based Ryanwood Exploration Inc., although that is not unusual at this stage of the process, says Lewis Rifkind, mining analyst for the Yukon Conservation Society. When the government finally withdrew the 12 per cent of the Dawson regional area from staking, it included the Antimony Creek area — but, as the map shows, the controversial claim in question still exists, because it was granted prior to the exclusion, Rifkind notes.
Moreover, if the Yukon assessment board is satisfied with the proponent, it could, in theory, allow the project to move forward as the land planning takes place, Rifkind says, because the right to work on existing, approved projects hasn’t been pulled, only the ability to stake new ones.
“They’ve withdrawn staking rights, but [that claim] is grandfathered in,” Rifkind told The Narwhal.
In the meantime, Joseph says the pause in the Antimony Creek project is the direct result of Trʼondëk Hwëchʼin First Nation’s concerns.
“We hope that the permitting and licensing agencies take into account that there is active land use planning in the area,” she says.
Similar issues arose in the case of the Peel, which saw a land use plan for the watershed finally signed in 2019. Claims that exist in now-protected areas can’t be developed, Jones says, so most owners have likely “written them off.” But, Jones notes, those claims haven’t been formally extinguished, but rather left “in limbo.”
“They haven’t been grandfathered in — but they haven’t been grandfathered out, either,” Jones says.
“To me, that really speaks to the importance of having land use plans in place.”
The issue extends far beyond the Dawson region. In recent months, Carcross/Tagish First Nation filed a suit against the Yukon government regarding the approval of two subdivision applications on their traditional territory, which the First Nation says it was not adequately consulted about, an action the First Nation says is in contravention of their final agreement.
Days later, on March 15, the First Nation of Na-Cho Nyäk Dun also launched a suit against the Yukon government for granting advanced mineral exploration rights in the Tsé Tagé (Beaver River) watershed, where land use planning is underway but is not yet completed. The First Nation not only claims this is contrary to the practicality and spirit of the land use planning process, but that it actively undermines that process and is “disrespectful.”
Newton says allowing staking or mineral development to take place on landscapes where land use planning is underway creates uncertainty for industry and First Nations, calling it “a strange situation of the government’s own making.”
“I don’t understand the logic of it,” Newton says. “I think you could call it a gap — or a flaw — in our current legislation.”
“Really, the ideal situation would be either a withdrawal of staking and development — a temporary one — while planning is going on. Or, if staking is permitted, that it’s really clear … if there’s going to be limits set on development.”
This uncertainty was a major point of conflict in the Peel land process; the Yukon government does not intend to compensate the grandfathered claim holders in that region, much to the consternation of the Yukon Chamber of Mines.
Veinott-McKeough, from the Yukon department of energy, notes neither the Umbrella Final Agreement nor the First Nation Final Agreements state mineral staking “should be withdrawn, or development not permitted before regional land use plans are finalized for an area.”
“Both the Yukon Placer Mining Act and the Quartz Mining Act permit free-entry staking unless there is a withdrawal order that restricts staking,” Veinott-McKeough said in an email. “Staking withdrawals have been put in place for a number of reasons over the years, including for land use planning processes in place.”
Once mineral tenure is assigned through staking, an assessment and authorization process must be satisfied before any development can commence, she added. “The assessment considers social and environmental impacts, and authorization is not granted until there has been consultation with the affected First Nations, and mitigations are in place for potential impacts.”
The government assumes they have authority over all Crown land, Joe-Strack says, adding several previous governments have tried to assert that assumption. “But it’s untrue … it’s to be managed with the First Nations.”
Jones says the grounds on which the government has proceeded with staking during the land use planning process is “shaky.”
“Basically, no one has ever tried (the government) on it,” Jones says.
He points to the free-entry staking system as the root of this issue, something he described as “an anachronism” — one that will likely change in the future, even though mining interests view alterations to it as “a threat” to the way they’ve always done things in the territory and will “go down kicking and screaming” to try to keep it the way it is.
The newly released Yukon Mineral Development Strategy recommended the Yukon government modify “the free-entry staking system to be consistent with Yukon’s modern treaties, court-guided agreements and case law.”
Joe-Strack takes an all around more critical look at the land planning process in Yukon; the land planning process itself, as it has been applied, runs counter to the philosophies of the First Nations on whose land it takes place, she says, with much of the work, done by people who have never set foot on the land they are making such big and powerful recommendations about. This system itself is “map-based, exploitive” and “colonial” in nature, she says.
“The First Nation approach to land planning is a complete flip of the Western approach to land planning,” she says, adding that the word ‘use’ should be removed from the idea of land use planning, so that it instead becomes about “obligation and responsibility” to both the land and the people who will live on it, now and in the future.
“It’s all about ensuring that we take care of the land, and we come to understand the needs of the land, so we can … nurture it, and in turn, be nurtured by it … and (move) forward to the type of society that we would like to create for our children, that sees them living closer and more honorably and equitably with the land,” she says. “That is a very, very big difference.”
Still, Joe-Strack is optimistic and believes that change is on the horizon.
“It’s really disheartening to see these overt colonial mentalities being carried out. It’s really frustrating — but change is coming,” she says, adding that she believes in the near future this way of thinking will not only no longer be “acceptable” but “shamed.”
“I still have a lot of hope — and a lot of patience.”
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