7 IMPORTANT COURT DECISIONS

Here are seven of the most important court decisions. Each casts doubt on how provincial and territorial laws apply to the extraction of resources from traditional lands. In this way, these decisions create uncertainty for the mining industry, and potential leverage for Aboriginal peoples:

• Delgamuukw-Gisdaywa Title Case: In 1997 the Gitxsan and Wet’suwet’en First Nations in northern B.C. got the Supreme Court of Canada to recognize the existence of Aboriginal title to land and resources. This ruling undermined the Province’s long-standing position that all Aboriginal interests had been extinguished.
• Yal-Skeena Cellulose Case: In 2002, the B.C. Supreme Court struck down the transfer of a logging tenure owned by Skeena Cellulose in northwest B.C. The transfer was invalid because Skeena Cellulose had not first consulted or accommodated the six First Nations whose traditional lands were involved.
• Haida Tree Farm License Case: The Haida challenged the validity of logging licenses held by Weyerhaeuser Corporation on the Queen Charlotte Islands. In November 2004, the Supreme Court of Canada affirmed that the Crown has a duty to consult and accommodate First Nations, even before title or rights are proven.
• Hupacasath Tree Farm License Privatization Case: In late 2005 the B.C. Supreme Court confirmed that Aboriginal title could exist on fee simple or private land. The court ruled that the Crown had failed to consult with Hupacasath First Nation about the privatization of forest lands in its traditional territory.
• Taku River Tlingit Case: Redfern Resources proposed to reopen the Tulsequah Chief mine and build an industrial highway through the heart of the traditional territory of Taku First Nation. Redfern challenged B.C.’s environmental assessment process after it rejected the proposal. The B.C. Supreme Court found in Redfern’s favour; so did the B.C. Court of Appeals. Redfern lost, however, when the Province of B.C. finally appealed the case to the Supreme Court.
• Tsilhqot'in Land Title Case: In 2007, The B.C. Supreme Court ruled that the Tsilhqotín had proven title to approximately 2,000 square km in the Brittany Triangle region of B.C. The judge ruled that they had an Aboriginal right to hunt, trap, and trade skins and pelts over an additional 2,000 square km. This was the first time a Canadian Court ruled that Aboriginal right exists to a large territory.
• Little Salmon/Carmacks First Nation Case: The First Nation asked the Yukon Supreme Court to review a decision made by the Director of the Agriculture Branch of the territorial government. This official had granted to an applicant some land within the traditional territory and near the settlement lands of Little Salmon First Nation. The First Nation said that the Director's decision should be set aside because he had not consulted adequately with the Little Salmon nor had he tried to accommodate them, which was his legal duty. The government said that this duty did not apply when a First Nation had signed a comprehensive land claims agreement, as the Little Salmon had in 1997. In 2008, the Court decided that a duty to consult and accommodate still existed, and that Yukon had not complied with that duty. The Court quashed the Director’s decision.¹

Several Aboriginal communities in northwest Ontario have taken political and court action to try and increase their leverage over the land. They have banned mining and other industries from their lands altogether. However, their story, to date, is not a happy one. They understood these court decisions to affirm the right of Aboriginal communities to have some control over development projects affecting their traditional lands. This interpretation has encountered stiff opposition from a mining company and the provincial government.

In late 2005, Kitchenuhmaykoosib Inninuwug (KI), Muskrat Dam, Wapekeka, and Wawakapewin jointly declared a moratorium on mining exploration on their traditional territories. In February 2006, KI blockaded a winter road that Platinex Inc. used to reach its exploration sites on traditional KI lands. KI argued that their inherent right to decide what happens on their lands was violated when the Ontario government granted mining claims without consulting them. Platinex sued the First Nation for $10 billion, which countersued the company and the government as well. In July 2006, a provincial court ordered the Government of Ontario to conclude a Memorandum of Understanding with KI and Platinex. The MOUMemorandum of Understanding: a document that records an understanding between a community and a mining or exploration company. The MOU defines principles for working together for mutual benefit. was to include the government’s obligation to consult with KI prior to development.

By October 2007, legal proceedings had bankrupted KI. The court prohibited KI from interfering in Platinex’s activities. KI stated that they would not allow Platinex back on their land. The First Nation’s Chief, Donny Morris, and five councillors were charged with contempt of court and went to jail.

Booming mineral prices have accelerated exploration throughout northern Ontario. Unrest among Aboriginal communities there is growing. At least nine First Nations have now called for a moratorium on logging and mining on their lands because of inadequate consultation by government prior to approval of these activities. Ontario amended its Mining Act in May 2009 as a result. However, First Nations insist the amendments are not enough. The Mining Act still fails to recognize that First Nations have the option of saying “no” to mining.

This struggle is not likely to be over yet. However, it shows what careful consideration must be given when using in one part of the country the leverage applied successfully in another part. Winning strategies require that you are clear about your objectives and the means available to reach them. Litigation and political action are strategies that require a lot of allies, time, and resources.

Limits to the Free Entry System

Recent policies, laws, and decisions have also given Aboriginal communities greater leverage in mining projects in the Yukon.

Up until 1990, mining laws across Canada (except in Alberta, Nova Scotia, and Prince Edward Island) strictly upheld the Free Entry System. It encourages prospectors and miners to find and develop Canada’s mineral resources, no matter who owns or uses the land. All the minerals in our public lands (90% of Canada) and most of the minerals in private lands (10% of Canada) belong to the Crown. The Crown transfers its mineral rights to prospectors and miners on a “first come, first serve” basis. People who use or own the surface of the land may not deny prospectors and miners entry. Only First Nations Settlement A lands, national parks and most provincial parks, and land with federal buildings on it are excluded from the Free Entry System.

Beginning with the Umbrella Final AgreementUmbrella Final Agreement: an agreement between the Government of Canada, the Council For Yukon Indians and the Government of Yukon. The Umbrella Final Agreement (UFA) was reached in 1988 and finalized in 1990. It is the overall “umbrella” agreement of the Yukon Land Claims package and provides for the general agreement made by the three parties in a number of areas. While the agreement is not a legal document, it is a political agreement made between the three parties. The UFA is the basis upon which final agreements with First Nations were negotiated. These are legal agreements and 11 of the 14 Yukon First Nations have concluded their final agreements. (UFA), several agreements and laws now put limits on the Free Entry System in Yukon.

UFA, signed in 1992, explains how the federal and Yukon governments will settle the land claims of the Yukon’s 14 First Nations. It also specifies First Nation’s rights to water, to the surface of settlement lands, and in the development of those lands:

• Water rights: Yukon First Nations have a unique right to the water which is on or flows through or adjacent to their settlement lands. It must remain unaltered in its quality, quantity, and rate of flow (including seasonal flow). Water licenses across the Yukon are the decision of the Yukon Territory Water BoardYukon Territory Water Board: an independent administrative tribunal established under the Waters Act. The Board is responsible for the issuance of water use licences for the use of water and/or the deposit of waste into water. (YTWB). It is up to water license applicants to prove to the Board that they will not alter a First Nation’s water in any significant way, or if they do, to compensate the First Nation.
• Surface rights: The Surface Rights Board will settle disputes over rights to the surface of the land. First Nations representatives will always make up half the members of the board.
• Development Assessment: Development Assessment legislation is to be enacted. This led to the creation of YESAA. (See the topic “YESAA,” below.)
   

Environmental Assessment

The Canadian Environmental Protection Act (CEPA) came into force in 1999. It requires that an environmental assessment come before any major industrial development happens. CEPA explains how to monitor industrial projects for pollutants and, if damage is done, how to correct it and compensate people for it. CEPA also says that the traditional knowledgeTraditional Knowledge (TK): the knowledge, observations, and understandings about the natural environment, and about the relationships between living beings and their environment, that Aboriginal people have accumulated over many generations. of First Nations is just as important to environmental assessment as scientific research and knowledge.

Environmental assessment (EA) is often presented as a way to make mines less harmful to the environment. Typically, EAs have been used to improve projects and come up with ways to reduce the effect a mine might have on the environment. There is little evidence that EAs have ever been used in Canada to refuse development, until very recently.

In March 2008, however, a B.C. and federal government EA panel rejected the Kemess North Project proposed by Northgate Mineral Corporation. The panel recognized that the mine would bring jobs and other economic benefits over its 13-year lifespan. Nevertheless, the panel concluded that overall, “the benefits of project development do not outweigh the costs.”

This is called the “contribution to sustainability” test. A similar test was applied in the 1990s to the Voisey’s Bay Nickel mine. It was decided that the mine could go ahead but only under certain conditions. Shortly after the rejection of Kemess North, the “contribution to sustainability” test was used in another EA. The White Point mine in Nova Scotia was rejected.

The “contribution to sustainability” test may become more common. It certainly is another point of leverage worth of careful consideration. But some within the mining industry can be expected to lobby hard against it.²

YESAA

In 2003 the federal government passed the Yukon Environmental and Socio-economic Assessment ActYukon Environmental and Socio-economic Assessment Act (YESAA): a federal law, passed by Parliament in May 2003. It establishes a process to assess the social, economic, and environmental effects of projects on the Yukon. The Act is a requirement of the Umbrella Final Agreement and Yukon First Nation final agreements. See http://www.yesab.ca/about_us/faqs.html (YESAA). The Act sets out a process to assess the environmental and socio-economic effects of projects and other activities in Yukon or that might affect Yukon.

This process requires any mining company that wants permission to undertake a project to first submit a Project Proposal to the Yukon Environmental and Socio-economic Assessment Board (YESAB). If the Proposal is complete, YESAB will carry out an assessment of the environmental and socio-economic effects of the project and what could be done to lessen (“mitigate”) these effects. During the assessment, First Nations and the rest of the public always have a period of time in which to comment on a project. After the assessment is concluded, YESAB will either recommend that the regulator or “Decision Body” - the Government of Yukon and sometimes a First Nation as well – approve the project or reject it. YESAB may also recommend that the project be allowed to proceed if some changes are made to it.

Three types of document are essential in a Project Proposal to YESAB:

1. The company needs to complete a “base-line study.” The base-line study reviews the physical, social, and economic environment that its development project will affect. This study should rely on traditional knowledge (TK) as well as scientific information. YESAA requires assessors to give full and fair consideration to both types of information. The company can learn from First Nations in the area how best to include their traditional knowledge in the environmental assessment. (Some companies provide funds to help record traditional knowledge.) That information is then used to make sure the proposed project avoids sacred and sensitive areas. First Nations may also cite traditional knowledge in their submissions to YESAB during the assessment.
2. The company must complete and submit all its permit applications. The application for Mining Land Use Approval must include the company’s reclamation and closure plans. These plans explain how the land will be repaired during mining operations and after operations end.
3. Mining companies that wish to undertake larger projects are required to consult directly with the First Nations whose traditional lands the mine will affect. Mining companies must submit to YESAB proof that this consultation has taken place before YESAB will commence the assessment. For example, SEPA and JV agreements may serve as proof that consultation has taken place. Consultation is not a requirement for smaller projects or explorations – but companies find it to their benefit to do so.

YESAB ‘s recommendation to the regulator(s) may be influenced by the results of consultation, too. After all, YESAB’s primary task is to reduce the harm that a project may cause to the environment and to socio-economic conditions. Therefore, YESAB could well take into consideration any commitments (in an MOU or SEPA, for example) that a mining company decides to make that will reduce such impactsImpacts: the effect or impression of one thing on another such as the impact of a mining project on the life of an Aboriginal community.. Likewise, YESAB may take into consideration the failure of a company to make such commitments.

(If a project of any size is to take place on Settlement Lands, the company is required to reach an agreement with the First Nation concerned. The First Nation is a regulator of activities on those lands, by virtue of its Final Agreement. Note that Aboriginal rights in Settlement A Lands differ from Settlement B Lands. Settlement A Lands give First Nations surface and subsurface rights. Settlement B Lands give First Nations surface rights only. Mineral claims made on what a land claims agreement later designated as Settlement A Land are still valid. Aboriginal leaders should check with a legal specialist if they are uncertain how their rights to an area compare with those of a company.)

Once they have received YESAB’s recommendation, the regulator(s) must issue a Decision Document that accepts, rejects, or varies YESAB’s guidance. They and other bodies, notably the Yukon Territory Water Board, then issue or deny permitsPermits: legally-binding permissions that govern activities that may occur during exploration or mine operation, like quarrying, use or impact on water, building of transmission lines, etc. and licenses in accordance with that Decision Document. (The UFA stipulates that the Water Board, like the YESAB, must have First Nation representation.)

For projects involving Settlement B Lands, a decision from a First Nation (as another regulatory body) may be required before development proceeds. If there are disputes over a mining company’s access to a claim on Settlement B Lands, these disputes can be taken to the Surface Rights Board. It will then decide whether or not to issue an order permitting access to the claim and outlining the terms and conditions of that access.