Liz Hanson highlights the importance of strong government-to-government First Nations relations

Yukon NDP Leader Liz Hanson asked the Yukon Party government the following questions this week about the importance of strong government-to-government relationships between Yukon's First Nations and the Government of Yukon:

Monday, May 10th 2016

Hanson (Whitehorse Centre): Thank you, Mr. Speaker. In a May 2 letter, the Tr’ondëk Hwëch’in First Nation states that the Yukon government is imposing a policy with long-term effects on their constitutionally protected rights. The new policy allows placer claim holders with homes on those claims to apply for the right to permanently own the land under those residences. In the letter, the Tr’ondëk Hwëch’in make it clear that they were not consulted on the changes to the policy. They also assert that neither the Dawson District Renewable Resources Council nor the Yukon Fish and Wildlife Management Board — two constitutionally mandated boards — was consulted on these changes.

Why did the government make changes to the rural residential land application policy for placer occupancy without consulting the Tr’ondëk Hwëch’in and the constitutionally mandated boards?

Minister of Energy, Mines and Resources Scott Kent (Riverdale North): Thank you very much, Mr. Speaker. My department is aware of approximately 70 existing residential structures that were constructed on mining claims before the 1999 mining and land use regulations were implemented by the federal government. At this time, owners of these long-standing and legitimate residential structures do not have any form of ownership of the land on which their residences are built. In order to resolve this historical issue, the Land Management branch is enabling owners of homes built before 1999 on these claims to apply for title through the rural residential policy.

Applicants or residents must fit the approved criteria and comply with the policy. Applications are subject a public review process on a case-by-case basis, which provides an opportunity for First Nation consultation and additional public input.

Hanson: Mr. Speaker, the intent of the Placer Mining Act is mining, not residential development. The Tr’ondëk Hwëch’in clearly objects to these unilateral changes. The First Nation final agreements were intended to end this unilateral approach to land use issues.

In their letter, the Tr’ondëk Hwëch’in First Nation said — and I quote: “When YG legitimizes haphazard residential occupancy throughout the traditional territory, you are breaking those promises. Your Government is compromising TH cultural pursuits and rendering land use planning virtually meaningless.” This government’s continued insistence on unilateral changes to policy that affect First Nation governments has a very real impact on the certainty that Yukon’s economy relies upon.

When will this government stop engaging in practices that undermine the principles of First Nation final agreements and — according to this Yukon First Nation government — render land use planning virtually meaningless?

Kent: Thank you very much, Mr. Speaker. As I mentioned in my earlier response, there are approximately 70 existing residential structures that have been constructed on mining claims before the 1999 mining land use regulations were implemented by the federal government. Owners of these long-standing, legitimate residential structures do not have any form of ownership of the land on which their residences are built.

Again, when it comes to this particular action, they do have to fit the criteria and comply with the rural residential policy. There are a number of additional criteria that they must meet. It’s important for me to mention as well that, on a case-by-case basis, applications are subject to a public review process, which provides an opportunity for First Nation consultation and further public input.

Hanson: The point, Mr. Speaker, is that consultation occurs before the policy goes into effect. The Premier likes to talk about how he is on board with reconciliation. He says he supports the recommendations of the Truth and Reconciliation Commission. His government’s actions do not reflect those words. Justice, now Senator, Sinclair of the Truth and Reconciliation Commission said — and I quote: “Reconciliation is about forging and maintaining respectful relationships.”

In Yukon, that means respecting the First Nation final agreements and the commitments made under the devolution transfer agreement to develop successor resource legislation. Once again, we see a government whose actions demonstrate that they believe they are not really bound by those agreements.

The TRC calls on governments to reform laws and government policies that undermine negotiated agreements with First Nations. When will this Premier’s actions match his words?

Kent: Thank you very much, Mr. Speaker. Again, to the residential placer occupancy piece — as I mentioned, there are a number of owners — approximately 70 in total — who have long-standing and legitimate residential structures that have been built before the 1999 land use regulations were implemented by the federal government.

As I said, there will be consultation on a case-by-case basis. Applicants’ residences must fit the approved criteria and comply with the rural residential policy. They’re subject to a public review process, which provides an opportunity for First Nation consultation and public input. Again, this is on a case-by-case basis for those individuals who are interested in applying under this program.

I know that the Premier, other ministers and I on this side have visited many of these placer mines, particularly in the Klondike area during the gold show and other opportunities. These owners do have long-standing legitimate residential structures on these claims and we’re trying to find a way to address the opportunities that they would like to see to get title to that land.

***

Tuesday, May 11th 2016

Hanson: Thank you, Madam Speaker. Yesterday, the minister ignored questions about a government policy that grants residential title on placer claims. In not answering why he acted without consultation, and why he is using mining regulations to grant residential property rights on placer mining claims, the minister demonstrated yet again that he either does not understand or chooses to ignore his obligations under final and self-government agreements, the devolution transfer agreement and the common law.

Yukon First Nations have tried to work with this government. In August 2015, they signed on to a protocol designed to make joint First Nation and Yukon government recommendations on changes to Yukon’s mining regime.

Madam Speaker, this issue is important so I’ll ask again: Will the minister consult with the Tr’ondëk Hwëch’in First Nation and revoke its new placer occupancy policy pending the outcome of that consultation?

Kent: Thank you very much, Madam Speaker. As I mentioned yesterday, there are approximately 70 existing residential structures that have been constructed on mining claims prior to the 1999 mining land use regulations, which were implemented by the federal government. Applicants’ residences must fit the approved criteria and comply with the rural residential policy. Applications are subject to a public review process on a case-by-case basis, which provides an opportunity for First Nation consultation as well as public input.

Madam Speaker, this is a long-standing issue for those placer miners who qualify for these. The Premier, other members of the government side and I have visited many of these placer mines and the owners and the investments that they have made pre-1999 on these properties. Again, consultation will take place with First Nations on a case-by-case basis as applications come forward.

Hanson: Existing mining claims do take precedence over First Nation settlement land rights. Since 1906, the annual value of work required on mining claims has not changed — $100 or $200. The intent was to ensure that claim holders carry out mining activity, not sit on the land.

This January, the minister announced the continuation of the double assessment program, effectively cutting claim holders’ costs in half. The Tr’ondëk Hwëch’in, who again were not consulted, have expressed their concerns and that — I quote: “By providing cheap and near-permanent rights that trump any other interest in the land, Yukon’s mining regime violates the intent of our Final Agreements.”

The minister’s proposal to exclude settlement land from the double assessment program is another example of this government’s piecemeal approach. What is this government doing to ensure that First Nation concerns regarding the double assessment program on overlapping claims are met?

Kent: Thank you very much, Madam Speaker. The member opposite referenced the year 1906. Again, since that time, there have been a number of other taxes and fees that are levied against all Canadians, including income tax and GST. The economic contributions of the placer industry are certainly recognized by this side of the House. Unfortunately, the New Democrats do not recognize the contributions. That is evident in the platform that they tabled in 2011, which would have been very punitive for placer miners in the Klondike region and indeed throughout the Yukon.

When it comes to the double assessment credit, of course, we are recognizing that prospectors were faced with difficult market conditions and were looking for opportunities. One of the options presented to me as minister was to provide relief from assessment. I didn’t want to do that, because it would have had the negative impact of incenting miners or prospectors not to work on their claims.

The double assessment credit was instituted. Some prospectors mentioned to me that they were able to leverage up to an additional $1 million in exploration funding because of the double assessment credit last year. We have changes to the quartz and placer mining acts before the House, which will allow us to have different rules for settlement land and public land. So that’s what we’re doing to make those changes. I look forward to debating those changes later on in the session.

Hanson: Thank you, Madam Speaker. There was no response to the issue of overlapping claims.

Madam Speaker, rather than working with Yukon First Nation governments on successor resource legislation, this government continues to make one-off changes, creating conflict and uncertainty.

As Tr’ondëk Hwëch’in put it in its letter — I quote: “Yukon mining legislation has essentially dictated the land use plan for the southern portion of the TH Traditional Territory”. I have heard similar concerns from other Yukon First Nation governments. This ad hoc approach to resource legislation flies in the face of obligations under the First Nation final and self-government agreements and the devolution transfer agreement.

Madam Speaker, will the minister admit that this government’s ad hoc approach to mining legislation creates uncertainty for First Nation governments, the Yukon mining industry and Yukon’s economy?

Kent: Thank you very much, Madam Speaker. Of course, there are a number of initiatives that our government has undertaken with respect to mining and working with First Nations — the establishment of the devolution transfer agreement protocol table.

We certainly recognize there may be matters that require additional direction. We’re committed to the process as established under the DTA protocol table for bringing those mining matters forward to the Premier and applicable ministers as well as the First Nation chiefs. The Government of Yukon is firmly committed to engaging cooperatively in good faith and by way of open discussions to address and develop recommendations as the protocol establishes. There are a number of initiatives that are underway and being discussed at that table, including mine licensing improvement and the mineral development strategy, among others.

We’re committed to ensuring that the table is successful and that the processes that were established under the protocol are adhered to. There was a meeting last week of the table. I believe it took place on Thursday of last week. Officials are working through mining-related issues with First Nations and I think that’s the proper forum for those to be discussed — at the DTA protocol table under the processes that we’ve established in the agreement with First Nations. 

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