A recent court judgment in a remote corner of Canada threatens to interfere with the way prospectors explore for minerals in much of the country. In December, the Yukon appeal court sided with the Ross River Dena Council that existing free-entry staking rules conflicted with the constitutional duty to consult aboriginal groups with outstanding land claims, in this case to an area known as the Kaska. In February, the Yukon government said it would appeal the decision to the Supreme Court of Canada.
“The sky isn’t falling,” insists Yukon Chamber of Mines president Rob McIntyre. But for overseas investors, it can appear that way, he admits. “From places like Geneva, there’s a tenuous grasp on where the Yukon is in Canada, let alone where the Kaska is in the Yukon,” he says. “People read ‘Yukon,’ ‘resource moratorium,’ call their brokers and say, ‘Sell everything to do with the place!’” And while the judgment halts prospecting only in the Kaska, it may be used by First Nations seeking injunctions against exploration elsewhere.
Kaska territory spans more than a quarter of the Yukon’s landmass and is home to several First Nations. They are not unfriendly toward mining. With their blessing, the Sino-Canadian venture Selwyn Chihong has spent more than $100 million to get a massive lead-zinc mine into production. Yukon Zinc’s Wolverine mine has operated in the region for three years.
But a mine almost always begins with a lone prospector. Grit and secrecy are his hallmarks. The free-entry system allows him to wander the landscape incognito, looking for geological clues in the knowledge he can claim rights to an area that shows promise before others hear about it.
|Money spent on mineral exploration in the Yukon in 2012, half the level of the previous year|
Unlike 11 of 14 Yukon First Nations that surrendered aboriginal title to huge areas in exchange for surface and sub-surface rights on smaller tracts, the Kaska includes two unsettled land claims, Ross River and Liard First Nation. Under Yukon law, possession of a mineral claim allows for tree clearing, building trails and using explosives for “class one” exploration—good reasons, say the Kaska, why they should have advance notice of where prospectors might desire a claim.
Adding to natives’ frustration, says Kaska Dena Council chair George Miller, is that the Yukon government turned to the Supreme Court, instead of negotiating directly with them. “Hopefully, for the good of everybody, common sense prevails,” Miller says. “You know, we’re not against mining, but we have aboriginal rights to our land that we’d like to be talked to about.”
The ruling could affect areas subject to aboriginal claims in the Northwest Territories, B.C., Ontario, Quebec and Newfoundland. The Kaska maintain it resets rules on all First Nations land regardless of treaty status.
The Supreme Court is thus the best venue to settle the matter, says Yukon Premier Darrell Pasloski. “More than half of all modern-day treaties in the country are in the Yukon, so it’s the right jurisdiction to have this kind of clarity,” he says. But the country’s exploration industry will have to wait for it. A decision on whether to simply hear the case is expected to take upwards of six months.