Story by Lloyd Dolha
The Na-Cho Nyak Dun First Nation is suspending all regulatory dialogue with the Alexco Resources Corp.’s Keno Hills mine near Mayo until suitable consultation and accommodation can be arranged with the Yukon and federal governments, prompting Yukon Premier Dennis Fentie to threaten court action.
“Governments have excluded us from any meaningful dialogue related to the Elsa/Alexco proposed redevelopment of the Keno Hills mines,” said Simon Mervyn, chief of the Na-Cho Nyak Dun. “Although we have had some discussions in the past, they were courtesy consultations and only paid lip service to our rights while the government eagerly cooperates with Alexco in furthering its objectives. Our First Nations people have used these lands for generations and we intend to be fully involved in the decision making process regarding their reclamation and redevelopment.
In June 2005, both the federal and territorial Yukon governments approved the transfer of the Keno hills assets to Alexco Resources Inc., through its subsidiary, Elsa Reclamation and Development Company.
The Na-Cho Nyak Dun are concerned that the territorial Crown continues to cooperate in a process that does not facilitate First Nations participation. The First Nation is one of four Yukon First Nations to sign a Self-Governing Agreement with the territorial and federal governments in 1995 and is a member of the Council of Yukon First Nations.
“It’s time for governments to properly and meaningfully come to the table to address First Nations rights before any more decisions take place with respect to Keno Hills,” said Chief Mervyn.
In a recent letter to the federal and Yukon governments expresses concern over the lack of meaningful dialogue . In the letter, Chief Mevyn states, “until such time that there is a process and funding for the Na-Cho Nyak Dun to independently evaluate, assess and contribute towards all ongoing regulatory processes with respect to the proposed redevelopment of Keno Hills, we have no other option but to withdraw from those processes.”
The First Nation cites a recent decision of the Supreme Court of the Yukon in Little Salmon/Carmacks First Nation in defending its position which established that there must be a “government to government dialogue” with respect to Crown approvals and transfers within the traditional territories of self-governing First Nations.
In the May ruling of Little Salmon/Carmacks First Nations, Yukon Supreme Court Justice Ron Veale, quashed a government land lease in favour of the First Nation.
In his decision, Veale sided with the First Nation’s concern that the territorial government had not properly consulted it before granting a farmer an agricultural lease on the First Nation’s traditional land.
Veale told the government to start consultations with the First Nation, citing the need for “government to government” consultation when it comes to land or resource use that would affect First Nations.
On August 28th, in a CBC interview, Yukon premier Dennis Fentie stated that the Yukon court “may have very well erred in their decision [in Little Salmon/Carmacks First Nation],” and announced his intention to appeal the ruling all the way to the Supreme Court of Canada if necessary.
In a later press conference, the Yukon premier said he will not let First Nations governments dictate land use to his government.
“When we get into situations where First Nations, such as NND in this case, have referenced a recent Yukon court decision and demanded consent for activity on their traditional territory, that’s where public government must stand up and say, ‘No, that’s not what was agreed to in the final agreement or any agreement,” said the premier. “This government will not agree to consent requirements.”
Fentie said the territorial government and the mining company have negotiated agreements with the Na-Cho Nyak Dun’s department of lands and resources that have resulted in some $7.6 million expended to the First Nation and associates for the care and maintenance of the mine.
Fentie emphatically denied that the First Nation haven’t been adequately consulted.
The chief of Whitehorse’s Kwanlin Dun First Nation says he won’t work with the Fentie government following his remarks on the Yukon Supreme Court ruling.
“The [Yukon] Supreme Court has come out quite strongly in favour of First Nations,” said Smith. “To dismiss the Supreme Court – saying they don’t know what they’re talking about – is basically, I think, saying you’re above the law.”
If Fentie’s government appeals the ruling, the Kwanlin Dun say they may apply for intervenor status in the appeal. In the meantime, Smith said his First Nation will simply refuse to work with the Fentie government.
Yukon Liberal leader Arthur Mitchell said Fentie should apologize to the Yukon Supreme Court for his remarks, noting that it’s unusual for a sitting premier to make dismissive comments about a court ruling.
“Until a decision is overturned it’s the law and it stands, and the premier should try to follow the law and he should stop saying he’s above the law,” said Mitchell.
The Fentie government is already planning to take the Little Salmon/Carmacks First Nation ruling to the Yukon Court of Appeal and the Council of Yukon First Nations said it will seek intervenor status if the Yukon government follows through.
The council’s leadership approved the action because it feels the outcome of the case has the potential to significantly affect all self-governing Yukon First Nations.
Despite the legal principles recognized by the Supreme Court of Canada, the Yukon government is arguing it has no duty to consult with or accommodate a self-governing Yukon First Nation unless the final self-governing agreements expressly directs it to do so.
There are now 11 of the territory’s 14 First Nations who have signed those agreements.
“Self-governing Yukon First Nations have a common interest to ensure that their Final Agreements are not frozen but are able to grow and evolve in accordance with new principles recognized or established by the courts,” said CYFN Grand Chief Andy Carvill. “Secondly, this intervention by the CYFN confirms the unity of all Yukon First Nations with respect to their opposition to the Yukon government’s narrow and literal interpretation of their Final Agreements as demonstrated by its arguments in the court case involving Little Salmon/Carmacks First Nation (LSCFN).”
The grand chief added he was very disappointed the Yukon Government plans to use the courts, rather than the less expensive, alternative dispute resolution processes already established by those final agreements to settle the case.
If the ruling is overturned by the Yukon Court of Appeal, it could be applied to other circumstances in which the Yukon government has decision-making discretion.
“Also, the CYFN hopes the federal government will also intervene on behalf of the LSCFN, because if the First Nation loses this case, it will be a disincentive for other First Nations to sign self-government agreements,” said Carvill.
The Yukon Court of Appeal is expected to hear the LSCFN’s case in the spring of 2008.