As a result of the Ross River Dena lawsuit against the Yukon
Government with respect to consultation on the granting of rights
to miners to conduct work without consulting and accommodating
First Nations, the Yukon Court of Appeal has given the Yukon
Government until December 27, 2013 to amend its legislation
specifically with respect to Class 1
activities. Class 1 activities can include construction
of lines, corridors, trenching, clearing for helicopter pads and
camps, construction of access roads and use of explosives.
There were four areas of concern identified as part of the
proposed amendments and they include, environmental protection and
monitoring, consultation with First Nations, security for
Class 1 exploration and identification of areas for specific
The objectives for the amendments were to ensure the duty to
consult First Nations was met, improved information sharing,
enhanced environmental protection and management of multiple
resources. In the case of Class 2 to 4 exploration
programs, notice to the Chief of Mining Land Use
("CMLU") is required.
The proposed amendments include notification by the operator
prior to the commencement of a Class 1 program so that
additional conditions may be placed on the program by the CMLU if
there was significant environmental risk.
CMLU would have the authority to do the following:
1. propose mitigation procedures on potential environmental
socioeconomic or adverse impacts on treaty rights of First
2. refuse the program;
3. provide security; and
4. issue a certificate of compliance.
Upon receipt of a notice, the Chief of Mining Land Use would
first determine if there was any potential adverse environmental
impact to be mitigated and advise potentially affected First
Nations. There would be a 25 day notice reply period and
then if no notice is received the proponent could undertake its
program. There would be a provision with respect to avoiding
undue hardship in proceeding with programs. In addition, there
would be "identified areas" where additional requirements
could be imposed.
The deadline for review process is July 31, 2013 for
A principal concern with this legislation will be the capacity
of First Nations to have a good understanding of the program and
its impact on their traditional territories and what responses are
One concern will be that the 25‑day period is unlikely to
be met and therefore proponents should be prepared to file their
possible exploration programs as early as possible in order to
address time delays.
An further concern is that a program can be refused if the
environmental or socioeconomic effects cannot be mitigated or that
treaty rights are "asserted" if aboriginal rights cannot
be eliminated or accommodated. What procedures will be in
place to address this problem?
One potential solution in this proposal is to perhaps bring in a
definition like that in Section 10 of the Mines Act
in British Columbia which requires notice when there is a
mechanical disturbance. This would still allow general
prospecting geochemical and geophysical exploration to take
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