Yukon First Nations Engagement and Consultation Guidebook is live Online
The purpose of the Yukon First Nations Engagement & Consultation Tool Website and Mobile App for the Mineral Exploration Industry (the Guide) is to provide relevant and timely information to mineral explorers and those who work with the industry on engagement and consultation requirements and expectations in Yukon. The Guide can be accessed through hard copy, and a web-based version, which is also available through an app. Although the Guide is primarily focused on information to mineral explorers, and will speak to that industry specifically, it will also be useful for those working with the industry such as investors, academic institutions and government organizations (public and First Nation).
The hard copy will give the reader best practices guidance and engagement and consultation information that is relatively constant. The web-based version can be regularly updated and provides the reader with additional temporal information such as the names of elected officials. The app is updated each time a user is connected to the Internet and the last update continues to be available when offline. The web version and app meet the challenges of both currency and accessibility.
This Guide, whether you are using the hard copy or the website, offers the following information.
YUKON IN THE CANADIAN CONTEXT
There are unique aspects of engagement and consultation in Yukon that are important for the industry to know. Understanding the history of the regulatory environment in the territory and how public and First Nation governments play an active and shared role, will help to situate best practices that are identified later in the Guide.
MINING IN YUKON
Yukon First Nations ancestors have lived in the territory since time immemorial. In the early years, before the Yukon Gold Rush in 1898, the relationship between First Nations and European explorers, fur traders and a few settlers was, generally, respectful and mutually beneficial. The influx of 40,000 gold seekers to the Dawson City area marked a turning point, leading to Ta’an Chief Jim Boss sending the Government of Canada a letter in 1902 asking the federal government to protect Yukon Indians’ way of life.
INDIGENOUS GROUPS IN YUKON
Traditionally First Nations see themselves as the protectors and stewards of land and resources for current and future generations. Exploration and mining activities throughout Yukon during the 20th century affected the traditional way of life of Yukon First Nations. Although not the only reason, this contributed to First Nations’ negotiation of the Modern treaties beginning with the Inuvialuit in 1984 including their interests along the North Slope of Yukon and the Gwich’in Tribal Council with interests in north central Yukon in 1992. Yukon First Nations negotiated the Umbrella Final Agreement (UFA), which was signed in 1993. The UFA created a foundation for the successful negotiation of eleven First Nation Final Agreements (also referred to in the Guide as “Modern treaties”). Each Yukon First Nation Final Agreement is composed of the UFA with boxes that identify clauses that customize the Agreement to each First Nation.
The UFA and Final Agreements affirmed Settlement Land and created or affirmed assessment and regulatory bodies with First Nation, Federal and Yukon government representation that apply throughout Yukon. Three Yukon First Nations did not reach settlement agreements. The regulatory and assessment processes created by the UFA, however, apply to lands in the non-treaty traditional areas of those three First Nations.
First Nations play an active part in land and natural resources stewardship, as well as economic development activities in Yukon. The eleven Modern treaty Yukon First Nations have traded off Aboriginal Title over larger areas of land in their Traditional Territories for the right to be partners in such matters as environmental assessment (UFA Chapter 12), water management (UFA Chapter 14), Heritage (UFA Chapter 13) and Land Use Planning (UFA Chapter 11), to name a few. The bodies created or affirmed through these chapters of the Modern treaties apply to the Settlement Lands owned by Yukon First Nations, as well as all other Yukon lands and resources, including federal, Yukon, and municipal lands.
On their own lands, and in some cases over their people wherever they are in Yukon, the eleven First Nations with Modern treaties also have law making powers, which are set out in Self-government Agreements. On Settlement Land some public and First Nations laws may apply to exploration. Seeking legal advice in this regard is recommended.
First Nations who opted out of the UFA-based treaty negotiations, have decided to pursue other avenues to reach reconciliation with the Government of Canada. They include White River First Nation beside the Yukon/Alaska border and the two Kaska First Nations in southeast Yukon: Liard First Nation and Ross River Dena Council. These three First Nations with non-treaty traditional areas have unique rights and interests, described in this Guide, that need to be recognized to enable the advancement of exploration projects.
The Taku River Tlingit First Nation has an overlap interest in southeastern Yukon that is also a non-treaty traditional area. This northern British Columbia First Nation has rights and interests that extend into the Yukon but which have yet to be reconciled. They have cultural, trading, and family ties to the citizens of the Teslin Tlingit Council and the Carcross/Tagish First Nation with their Tlingit ancestry, and have specific traditional interests in those Yukon Traditional Territories.
Land management in non-treaty traditional areas is evolving. The website and app will be particularly valuable for up to date information for these First Nations.
In addition to the TRTFN, other Indigenous organizations have significant land interests in Yukon. In 1984, the Inuvialuit signed their Modern treaty. It includes an environmental assessment process that applies to the North Slope of Yukon. In 1992, the Gwich’in Tribal Council (GTC) signed its Modern treaty which includes 1554 kms2 of fee simple lands in the Peel region of Yukon as well as rights to hunting.
This Guide provides information on all fourteen Yukon First Nations as well as three indigenous groups centered outside Yukon with interests in Yukon. Whether working in Traditional Territories of Modern treaty First Nations, or non-treaty traditional areas, relationships are critical to the advancement of exploration projects and this Guide is your resource to navigate the path towards engagement and consultation.
THE YUKON ENVIRONMENT
Where a mineral exploration company takes necessary steps to understand the Yukon environment and works with the key Yukon partners, the Yukon and First Nations governments, mutually-beneficial outcomes can be achieved. Indeed, it can very well complement the increasing alignment of thinking among First Nations, industry and society. This alignment suggests that, if done respectfully and inclusively, positive relationships can develop between the exploration industry and First Nations, relationships that can provide direct benefits to the long-term economic development of Yukon. There are several examples of where the mineral exploration industry and First Nations have reached respectful and beneficial relationships. Recent examples include: the Prophecy Platinum Corp and Kluane First Nation cooperation and benefits agreement; Victoria Gold Corp and the First Nation of Na-Cho Nyak Dun comprehensive cooperation and benefits agreement; Strategic Metals and the Champagne and Aishihik First Nations mineral exploration agreement.
These success stories are further backstopped by what is happening in communities throughout Yukon. First Nations citizens are increasingly educated and technically trained, and the economic development corporations owned by their governments are fostering First Nation businesses and entrepreneurs. This means First Nations are developing as service providers, contractors, suppliers, managers, and professional staff.
The Truth and Reconciliation Commission Report released in 2015 says in “Calls to Action”, #92 the corporate sector is asked to “commit to meaningful consultation [and] building respectful relationships… ensure that Aboriginal peoples have equitable access to jobs, training, and education opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable benefits from economic development projects.”
This Guide is designed to further healthy relationships between the exploration industry and Yukon First Nations.
The Guide provides a comprehensive collection and integration of information that otherwise is difficult to find in one place. The Guide provides a comprehensive information base across all Traditional Territories in Yukon with a summary of Engagement and Consultation Best Practices that are designed to encourage mutually beneficial partnerships.
It identifies the indigenous groups with an interest in land that the exploration industry wishes to work in. In some cases there may be two, or more, Traditional Territories or non-treaty traditional areas affected by an exploration program. It is important to review all of the Modern treaties associated with those Traditional Territories. If the activity is planned in a traditional area of White River First Nation or one of the two Kaska areas in Southeast Yukon (Liard First Nation and Ross River Dena Council) there are no Modern treaties in effect; this is discussed in section 3.4 of the printed Guide.
The Guide also offers direct links to First Nation(s) engagement and consultation materials. This information is intended to provide a road map to support industry and indigenous groups in arriving at a positive working relationship in Yukon. This road map is supported by a number of Best Practices provided here. These Best Practices are based on a series of foundational themes.
The context for engagement and consultation has evolved. It is now in the best interests of industry, First Nations and governments to reach lasting relations based on active and sustained engagement.
Misinformation and missing information sometimes underlies tensions between First Nations and the exploration industry. The Guide aims to improve awareness and understanding of the different priorities and perspectives of First Nations.
It should not be assumed that all First Nations have similar interests or priorities; sustained communications builds an understanding of unique perspectives. Understanding the unique political, social, economic and environmental context of each First Nation can assist in building the partnerships among industry and First Nations.
Each of the parties involved in or affected by mineral exploration has rights. Modern treaties define the rights of Settled First Nations, the laws of general application relating to aboriginal law define non-treaty traditional area rights, and Yukon and federal laws provide rights to exploration companies. Navigating these areas is greatly supported by strong and transparent relationships.
Specifically for the exploration industry, it is recognized that mining rights in Yukon are well developed, recognized and protected. While the Yukon and federal governments exercise wide-ranging authority to approve and regulate mining activities, they do so in accordance with an established body of administrative law that imposes duties of fairness and natural justice.
Mineral tenure in Yukon is granted under the Quartz Mining Act (QMA) and the Placer Mining Act (PMA). This legislation provides the exclusive right to publicly-owned mineral resources through the establishment of claims and/or leases. All public lands are open for staking and mineral exploration unless they are expressly excluded or withdrawn by order-in-council (e.g. First Nation settlement lands, parks, interim protected lands, buildings, dwelling houses, cemeteries, agricultural lands). As the primary legislation governing hard rock mining activities on lands in Yukon, the QMA provides for prospecting, exploration, staking and development of mineral resources by providing an orderly system of allocation of exclusive rights to minerals (specific permission must be obtained where the surface is occupied by others).
Some definitions are useful to set the context for the Guide.
Concerns are often expressed about the different meanings of “Consultation”, “consultation”, and “engagement”. When Consultation is capitalized it refers to the federal and territorial “Crown duty to Consult” which is being defined by the Courts. Although the federal and territorial governments (those who have the responsibility to uphold the Crown Consultation requirements) can delegate some procedural aspects of that duty, they are ultimately responsible for meeting that obligation to safeguard Indigenous rights. As noted earlier, it is advisable to seek legal advice in this area.
The Guide will also address “engagement” and “consultation”.
“Engagement” is about the establishment of relationships where the parties build understanding of the other’s interests. Engagement continues before and after the signing of any agreements. It is the ongoing commitment and dedication to a conversation among the principals or their delegates to ensure understandings are being fulfilled and people are staying connected. By engaging on an ongoing basis, the parties can adapt to changes that inevitably occur in the environment or the exploration program.
Industry “consultation” is more about developing products such as a Memorandum of Understanding, a Letter of Agreement, or an Exploration Agreement (there are various titles for these). Industry consultation produces agreements that ultimately lay the groundwork for the ongoing relationship.
“Early engagement” is a term found in this Guide. As you will see from the Best Practices, early is better. Early and open engagement supports First Nations’ capacity to engage fully in any stage of exploration. It is better to open the dialogue to ensure “no surprises” at a later point.