The Yukon government is proposing to amend the Yukon Quartz Mining Act (QMA) and the Yukon Placer Mining Act to change the approval process for Class 1 exploration activities. Currently, Class 1 activities, which include the clearing of trees, trenching, removal of bulk samples, and use of explosives, may be undertaken without an opportunity for the Crown to consult with First Nations.
The proposed amendments will introduce new provisions aimed at providing an opportunity for the Crown to consult with First Nations prior to Class 1 exploration activities being undertaken. This will have obvious timing and permitting implications for those staking claims and planning to undertake exploration work.
Details of the proposed amendments are available on the Yukon Government’s website. The Yukon Government is accepting comments and submissions from the public on the proposed amendments until July 31, 2013.
The amendments are in response to a recent decision by the Yukon Court of Appeal in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14. In this case, the Ross River Dena Council contended in part that once a claim is recorded, the mineral right holder may carry out any Class 1 exploration activities without having to provide prior notice to anyone of the same, and in the absence of any approval. As a result, Class 1 activities could take place without any opportunity for the Crown to consult with the Ross River Dena Council.
The Court of Appeal considered this system and agreed that the Crown did owe a duty to consult, with, the Ross River Dena Council in respect of Class 1 activities. The Court also found that the existing regulatory regime did not provide an opportunity for consultation with First Nations prior to Class 1 activities being undertaken. The Court of Appeal stated that the Yukon Government could cure the deficiencies in the existing regulatory regime (including the QMA) to provide an opportunity for Crown consultation. The court provided a one-year period for the Yukon Government to cure the identified deficiencies, that is, until December 27, 2013. For further discussion of this decision, see our bulletin here.
Leave to appeal this decision to the Supreme Court of Canada is being sought by the Government of the Yukon and a decision on leave is pending.
For the time being, the proposed amendments will address four main issues:
- Environmental protection and compliance monitoring for Class 1 activities;
- Consultation with Yukon First Nations;
- Security for Class 1 exploration; and
- Identification of areas for specific operating conditions.
The proposed amendments
- require written notification to be provided to the Chief of Mining Land Use prior to the commencement of a Class 1 program;
- expand the powers of the Chief of Mining Land Use for Class 1 activities, including:
(a) the power to refuse to allow a Class 1 program if environmental or socioeconomic effects cannot be mitigated or adverse effects on treaty rights or asserted aboriginal rights cannot be accommodated; and
(b) the power to require the person carrying out the Class 1 activity to provide security where there is a risk of significant adverse environmental effects;
- establish a 25-day review period for Class 1 exploration activities and the ability to extend the review period if needed; and
- authorize the Minister to define certain “identified areas” where specific operating conditions will apply (such as limiting activities to certain times of year to avoid critical habitat disturbances).
More information about the public consultation process for these proposed amendments and details about how to submit comments are available at: http://www.emr.gov.yk.ca/mining/class_1_exploration_consultation.html.