Written by Randi Newton | May 13, 2021
Photo by Malkolm Boothroyd, mining in Keno.

The territory’s mining legislations need a substantial overhaul.

Read the full editorial as published in the Yukon News on May 13th, 2021.

—

Op-Ed: There’s momentum for mining reform

The Yukon’s mining laws were enacted over a hundred years ago. Despite minor updates, they haven’t kept pace with the scale of mining seen today, or with the territory’s social, political, and legal landscape. I had hoped the development of the Mineral Development Strategy would provide a blueprint for bringing the territory’s mining laws into stride with 21st century expectations and realities.

While the final strategy, released this April, includes many progressive recommendations and is a big step forward, it isn’t enough to move past the mire of issues linked to the Yukon’s current mining regime.

True, it does include powerful mentions of reconciliation and honouring Aboriginal rights, respecting the wellbeing of people and the environment, and managing mining in a forward thinking way. But its recommendations fall short in fully and consistently advancing all of these ideas. First Nations and many others pointed out the shortcoming of the draft strategy but most of these flaws were not resolved in the final document.

Despite this, I remain optimistic that mining in the territory can be reshaped, to ensure that the health of the land, people and communities comes first, and that the benefits and opportunities that mining can bring are equitably shared. The Mineral Development Strategy is just one of multiple forces pushing the territory in that direction.

These forces include notable court cases, like the Supreme Court of Canada’s Peel Watershed ruling that upheld the right of First Nations to meaningfully participate in resource management in their traditional territories. It also includes the Yukon Court of Appeal’s 2012 ruling, which found the Yukon government had a duty to consult Ross River Dena Council before granting quartz mineral claims, and that the territory’s free entry mining system conflicted with this duty.

Despite these legal victories, policies and legislation can shift frustratingly slowly. If change was quicker to arrive, the First Nation of Na-Cho Nyäk Dun wouldn’t have had to launch legal action against the territorial government for failing to properly consult before they approved mineral exploration in the Tsé Tagé (Beaver River) Watershed. But this case also shows that people and First Nation governments will continue to stand up for meaningful reform.

Momentum for mining reform was also on display at the Yukon Water Board’s October 2020 public hearing on placer mining in wetlands. While the board has not yet acted on that hearing, First Nations and environmental organizations sent a clear message that placer mining in undisturbed wetlands must be paused until a framework is in place to protect the ecological integrity of these habitats and to respect Aboriginal Rights.

Other signs of change include Yukon government’s rejection of Atac Resources’ 65 km mining exploration road through the pristine Tsé Tagé Watershed, a project that may have gone ahead had the government’s review been less thoughtful. Another recent example was the federal government directing the Yukon Environmental and Socio-Economic Review Board (YESAB) to revisit and better address the likely impacts of the Kudz ze Kyah mine, including the decline of the Finlayson caribou herd and resulting impacts on Kaska Dena rights. This shows it’s becoming less acceptable for projects to move forward with unproven plans to avoid and address impacts on wildlife, water and the land.

These forces of change are reflected in the attitudes of Yukoners. Recent independent polling commissioned by CPAWS Yukon and the Yukon Conservation Society shows that:

• 60 per cent of Yukoners think that our territory’s mining laws are too weak (only 24 per cent think they’re strong enough);
• 72 per cent agree that much more should be done to clean up mines after they’re closed; and
• 78 per cent support ambitious conservation goals, the same or higher than Canada’s target to protect 30 per cent of land and waters by 2030.

While many of the recommendations in the Yukon Mineral Development Strategy would improve the mining rules currently in place, the changes envisioned in the strategy will likely be outpaced by the forces mentioned above. The final strategy doesn’t resolve key issues, like mining and other development moving forward ahead of land use planning or attaining free, prior, and informed consent from First Nations. This leaves mineral development at odds with other values and uses of land, and in conflict with First Nation rights.

As another example, CPAWS Yukon and others had hoped the strategy would call for a pause on mineral staking and development at the start of land use planning. Otherwise, a steady stream of permits quickly reduces options to thoughtfully consider other uses of land and can introduce complicated wranglings for compensation. Unfortunately, the final strategy caps temporary staking withdrawals at 20 per cent of a planning region, a number that’s arbitrary and inadequate for preserving other land values while planning is ongoing.

We were also concerned by some of the recommendations to streamline the regulatory system. While this is an admiral goal on the surface, a number of the strategy’s recommendations would achieve it at the expense of accountability and transparency. One example is a recommendation to create a government liaison position to guide proponents through the mining regulatory system. Having the government act as both regulator and client advisor creates a conflict of interest and can impede the ability of regulators to act in the public interest.

Yet the strategy also includes recommendations that will bring about overdue and powerful changes. Most significantly, it calls on the Yukon to modernize its woefully outdated mining laws. Engagement submissions from First Nations, environmental organizations and many Yukoners show the expectation is for legislation to be brought fully in line with the Final Agreements and Aboriginal rights, as well as environmental and cultural sustainability.

The Mineral Development Strategy also places rightful priority on continuing land use planning across the territory, and on making sure there is funding available to do planning properly.

As with the draft, the strategy calls for a comprehensive review of our royalty system, so that more of the profits that are extracted out of the land flow back to Yukoners and First Nations, and future generations. It also includes progressive new mechanisms like a Heritage Fund and a payroll tax for fly-in workers. These policies would help deliver more consistent and fair financial, social and ecological returns to the Yukon.

Most meaningfully, the development of the Yukon Mineral Development Strategy sparked an important and lively public discussion about how to best reshape mining in the territory, for the betterment of the land, climate, wildlife, people, and communities. Even if the strategy itself didn’t fully capture all of the contributing voices, this conversation will continue as people work together to shape the future of the territory.