Kaska Nation announces plans for new Resource Law

On January 27, 2015, the leaders of the Kaska Nation issued a news release and declaration announcing plans to develop a resource law and regulations (Kaska Resource Law).  The introduction of the Kaska Resource Law is intended to provide clear direction to resource proponents seeking to operate in the Kaska Nation’s traditional territories. The Kaska Nation is comprised of the Ross River Dena Council, Liard First Nation, Daylu Dena Council, Dease River First Nation and Kwadacha First Nation, whose traditional territories extend over parts of northern British Columbia, southeastern Yukon and southwestern portions of the Northwest Territories.

The objective of the Kaska Resource Law is to enable the members of Kaska Nation to oversee access to, and developments in, their traditional territories. Although the details of the Resource Law have not yet been developed, the news release suggests that the Kaska Nation intends for it to set out rules for development and access to its lands, including the need to obtain the consent and support of the Kaska Nation. Since the Kaska Resource Law is meant to supplement federal, territorial and provincial regulations, proponents are also expected to continue to comply with applicable laws and guidelines.

The Kaska Resource Law is set to be developed over the next six months, with the aim to have the law approved by a special Kaska General Assembly in summer 2015. It is anticipated that more detailed regulations will be developed over the next two years. In the meantime, the Kaska Nation has indicated that it expects all resource developers to continue entering into agreements with the Kaska Nation for the provision of employment, training and business opportunities and other benefits for the Kaska Nation and its members.

The development of the proposed Kaska Resource Law is an indicator of the evolving landscape of Aboriginal–industry relations in Canada. Although the substantive content of the Kaska Resource Law is yet to be determined, the declaration by the Kaska Nation follows similar issuances of by other First Nations. Notably, the Tsilhqot’in National Government issued a draft Mining Policy for comment on July 31, 2014 (see our previous blog post about it here), and the Northern Secwepemc te Qelmucw Nation issued a Mining Policy on November 19, 2014.  In the case of the Secwepemc Nation, no Aboriginal title has been declared over any part of its claimed traditional territory.

Each of the proposed Kaska Resource Law, the Tsilhqot’in draft Mining Policy, and the Northern Secwepemc te Qelmucw’s Mining Policy seek to establish conditions for government and industry to obtain the consent of the respective Aboriginal group to access their traditional territories for resource development purposes. Although these policies may be referred to as “law”, to the extent that they purport to extend beyond proven Aboriginal title lands (as is only the case with the Tsilhqot’in Nation’s defined Aboriginal title lands) to the broader traditional territories of these First Nations, we note that there is currently no established legal authority through which the terms of the policies could be enforced (such as requiring, at law, an impact benefit agreement as a precondition to development activities). Rather, as discussed by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, in respect of lands where Aboriginal title has not been established, the well-known principles of consultation, and where appropriate, accommodation, continue to apply.

The BC-based Kaska Nation bands are currently in engaged in treaty negotiations with the provincial government, and the province has entered into a Strategic Engagement Agreement with the Kaska Dena Council (including the Daylu Dena Council, Dease River First Nation, Kwadacha First Nation). Negotiations with the Yukon First Nations are currently on hiatus pending the resolution of certain transboundary issues. We note that the Premier of Yukon, Darrell Pasloski, has been reported as stating that the Kaska Nation is unable to proclaim laws, absent a modern day treaty that could include self-government provisions and the ability to pass laws.

Yukon Government extends staking prohibition

The Government of Yukon also recently announced on January 28, 2015 its plans to extend the prohibition of entry for mineral staking in the Ross River Area until January 31, 2017. The extension of the prohibition is intended to enable the government to conclude consultations with Ross River Dena Council regarding the staking of mineral claims in its traditional territory.

The prohibition was first implemented in December 2013 as a result of the Yukon Court of Appeal (YKCA)’s decision in Ross River Dena Council v. Government of Yukon.  In that case, the YKCA declared that the Government of Yukon has a duty to notify and, where appropriate, consult with and accommodate the Ross River Dena Council before allowing any mining exploration activities to take place within the Ross River Area, to the extent that those activities may prejudicially affect the Ross River Dena’s Aboriginal rights. The order was due to expire on January 31, 2015. For a detailed overview of the YKCA’s decision, please see our legal update dated January 17, 2013. An application for leave to appeal the decision of the YKCA was denied by the Supreme Court of Canada.

The extension of the prohibition will apply to disallow any new staking of claims under the Quartz Mining Act and the Placer Mining Act. However, the prohibition does not impact existing claims in the area. The Government of Yukon also extended relief to existing claimholders from assessment during the extension period.