Fortymile Dredge

Yukon First Nation calls on territory to abolish ‘colonial’ claim staking process for mines

As the territorial government works toward a mineral development strategy, Carcross/Tagish First Nation urges an overhaul of the free entry system that it says puts rights in the hands of miners and removes it from Indigenous Peoples

A Yukon First Nation is calling on the territorial government to abolish its wide-open process for recognizing mineral claims, citing colonial underpinnings that have brought waves of miners to the territory since the advent of the Klondike Gold Rush. 

Under Yukon’s free entry system, prospectors can stake a claim anywhere they want, as long as it isn’t in a park or on certain municipal or settlement lands, for instance. 

This outdated legislation hands over the rights to miners while removing First Nations from the consultation equation, according to Carcross/Tagish First Nation. The nation voiced this concern in its response to a request for comments on a Yukon Mineral Development Strategy now in the works for the territory.

An independent panel is currently collecting feedback from Yukon residents as part of developing this strategy, which could lead to improvements to existing legislation. 

“Despite the First Nation’s efforts, the Yukon’s current mineral legislation and management regime places short-sighted economic gain above the land-use practices that have supported Indigenous Peoples for generations,” the Carcross/Tagish submission says. 

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The government does enforce certain checks and balances through mineral staking to limit impacts on water quality and the use of harmful substances in processing. But as it stands, someone who stakes a claim cannot be denied from doing so, the submission says. 

“The free entry system is a God given right in some people’s minds, so get rid of that system,” says Skeeter Wright, a mining consultant for the First Nation, which is about 72 kilometres south of Whitehorse.

The problem is that once a claim is staked, the individual or company has tenure. How long this lasts depends on sustained work on the claim or annual fees paid in lieu. 

“They’ve got the right to mine once they stake the claim,” Wright said. “There’s the potential for what some would say is the incredible destruction of renewable resources, the cultural values that go along with vegetation.” 

“It’s such a bad regime.”

What Carcross/Tagish First Nation recommends

When someone stakes a claim, it should go through the regular permitting process so that First Nations are involved in approving the mineral claim, Carcross/Tagish argues.

A prospector’s stake opens the door to far more work in the future. As such,  Carcross/Tagish says these claims should be considered in terms of the socio-economic and environmental impacts that could stem from exploration or mine development.

“The assessment need not include extremely detailed exploration or mine development plans but should include the consideration of adverse effects of potential major development activities, access and ground disturbance in the area,” the submission reads.

This, it continues, would ensure that permission is granted by all parties involved, for those wanting to pry open the land to development. 

Carcross/Tagish First Nation has 1,553 square kilometres of settlement land, stemming from its land claims agreement with the territorial and federal governments. These lands are broken down by what are referred to as Category A and B lands. The former means the First Nation has rights to what’s on the surface and beneath it; in Category B, only surface rights are established. Just over 500 square kilometres of Carcross/Tagish settlement lands are Category A.  

But abolishing the free entry system hinges on First Nations asserting rights to their traditional territory — lands they’ve used for generations that don’t fall under modern treaties. That way, the Yukon government would have a duty to consult when a miner stakes a claim on traditional territory. Carcross/Tagish First Nation has 11,500 square kilometres of these lands. 

“There’s value in traditional territory well beyond settlement land,” Wright said, adding berry patches and wild game are often harvested on traditional territory.

‘A vestige of the past’

Under the Quartz and Placer Mining acts, prospectors are able to access all minerals beneath the surface once they stake a claim.

Any work that’s done on a claim — say, water diversion or building major mining infrastructure such as roads or ore extraction facilities — requires First Nations consultation through the Yukon Environmental and Socio-economic Assessment process. However, this isn’t the case when a claim is staked.

It’s a system based on legislation that’s steeped in colonialism, the submission says.

“The current system, now acknowledged as antiquated, has resulted in displaced homes, displaced First Nation peoples’ traditional harvesting and severely damaged ecosystems that include fish and wildlife resources,” it says. “The rationale for the free entry system, to provide incentives and reward interest in the Yukon, was a byproduct of a colonial perspective of northern Canada as an area of no other potential use or interests.”

While there’s ostensibly been work done to advance reconciliation across the country, perspectives need to continue to shift, Wright said.

“The Quartz and Placer Mining acts are still vestiges of that really very unpleasant colonial attitude of way back when,” he said. “A major step in reconciliation would be fixing those two mining acts.” 

While there have been some amendments — withdrawing protected areas and some municipalities from the purview of the free entry system — Carcross/Tagish argues they don’t go far enough.

Other jurisdictions, such as the Northwest Territories, require a prospecting permit.

“Further to that, the consent of the holder of any surface rights is required prior to entry for prospecting or staking,” it says.

Where the Yukon Mineral Development Strategy stands now

The purpose of creating the Mineral Development Strategy is to collect feedback from the public and turn that into recommendations for the Yukon government, which could enact certain legislative changes.

According to the independent panel’s terms of reference, it is meant to consider both the challenges to the mining sector, as well as ways resource extraction can be done responsibly. 

This work dates back to 2017, when a memorandum of understanding was signed by the 11 self-governing Yukon First Nations and the territorial government to improve the quartz and placer mining regimes.

A spokesperson with the Department of Energy, Mines and Resources declined comment, adding that it would be premature to do so at this time.

The panel was supposed to have completed its work by the end of May, but the COVID-19 pandemic derailed those plans, said Michael Pealow, the process facilitator.

Draft recommendations are now expected to be completed in early 2021, followed by a public comment period. A final report, complete with refined recommendations, is projected to be ready next spring, Pealow said.

While all work to date is tentative, he said, “the main priority is to have a good process.”

Julien Gignac is The Narwhal’s Yukon correspondent, based in Whitehorse. Of Mohawk and French descent, he has a penchant for…

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