Both the Federal and Territorial governments acknowledge their responsibility to meet their Duty to Consult in a meaningful way with First Nations before making a decision that might adversely impact the exercise of Treaty or Aboriginal rights. Where appropriate, government decision-makers will also develop ways to accommodate the concerns of First Nations about potential negative impacts on the exercise of their rights in Yukon.
The Federal government exercises decision making authority in relation to:
- migratory birds (Department of Environment & Climate Change Canada);
- protection of fisheries (Department of Fisheries & Oceans), and;
- protection of navigable waters and transportation of dangerous goods (Transport Canada).
The Yukon government makes decisions regarding the use of all renewable and non-renewable resources on Crown land in the Territory. The Yukon government will also encourage explorers to engage First Nations at the early stage of the exploration process. Ideally, industry engagement with First Nations will begin before applications are made to government.
Government’s Duty to Consult and industry’s engagement and consultation processes are not the same. Consultation by government refers to activities undertaken by the Crown/government in relation to its Duty to Consult, an obligation created by Section 35 of the Constitution Act 1982. However, the Crown can, and does, require industry to engage First Nations to avoid potential negative affects to Aboriginal interests.
Without early and comprehensive Crown Consultation and industry engagement, mineral exploration and development will be challenged to move forward in a timely manner in Yukon.
Yukon Environmental & Socio-Economic Assessment Act (YESSA)
YESAA sets out a process to assess the potential environmental and socio-economic effects of mineral exploration activities. This process begins when a project proposal is submitted to the Yukon Environmental & Socio-Economic Assessment Board (YESAB). Assessors consider the proposed activities by gathering information from federal, territorial, First Nation governments, technical experts, the exploration company and the public, and by conducting their own research. The assessor recommends whether the project should proceed, proceed with terms and conditions, or not proceed. Designated Offices serve as the assessor for most proposals, and are located in Dawson City, Haines Junction, Mayo, Teslin, Watson Lake and Whitehorse. A designated office must, as an outcome of an evaluation, refer a project to the Executive Committee for a screening if it cannot determine whether a project is likely to have significant adverse effects. In turn, the Executive Committee may refer a proposal to a panel review.
When an assessment is complete, the recommendations are sent to the relevant Decision Bodies, which can be federal, territorial and/or First Nation governments. The Decision Bodies will choose to accept, reject or vary the YESAB recommendation. In the case of the Yukon Government, the sole Decision Body for the majority of mineral exploration projects in Yukon, a draft Decision Document will be provided to appropriate First Nations by the Government’s Department of Energy, Mines & Resources (EMR) for review and consultation. EMR’s practice is to consult on the draft Decision Document with an affected First Nation with a Final Agreement if that First Nation has expressed concerns about the project during the YESAB review.
On mining claims, all Class 2, 3 and 4 exploration activities, as defined under the Quartz Mining Act, require that a YESAB assessment be completed prior to a Mining Land Use Authorization being issued by EMR. Type A and B Land Use permits under the Territorial Lands (Yukon) Act and Water Licenses issued under the Waters Act also require a YESAA assessment.
YESAB does not issue permits or authorizations. Furthermore, the requirement for an exploration company to consult is not driven by YESAA, and should not be confused with the requirements of the Crown to Consult with First Nations. The Crown does, however, rely on the assessment process under YESAA to help fulfil its common law obligation to consult with First Nations.
Companies are advised to engage First Nations early. Developing positive relationships with First Nations based on transparent and open communications will help bring build investor certainty and facilitate a predictable assessment and permitting process.
Yukon Water Board
The Yukon Water Board is an independent quasi-judicial board established under the Waters Act to adjudicate applications for the use of, and deposit of waste in, water in the Yukon. Applications deemed adequate are posted to the Board’s website registry and publicly advertised as being under review. The Board also notifies relevant departments of the Governments of Canada, Yukon and those Yukon First Nations potentially affected by the application.
Reviews of Type A Quartz Mining Water Licence applications will generally include a public hearing. Applications for a Type B Licence involve a public hearing only when the Board determines one is required. If the Board agrees to issue a new licence or renew or amend an existing license, it will be consistent with the Decision Documents issued by Decision Bodies.
Prior to finalizing a new Type A licence, renewal or amendment, the Board will usually distribute a draft of the licence to the applicant and interveners to seek technical input. This technical review is not to reconsider the Board’s decision.
Type A Water Use Licence approved by the Board are submitted to the Yukon Government Minister responsible for the Water Board for final approval. The Yukon government does not conduct any further consultation before the licence is signed and returned to the Water Board.
Type B Water Use Licences approved by the Board are signed by the Chair of the Water Board. Significant public interest could elevate a Type B application to be treated as a Type A, then requiring a public hearing.
Yukon Government Decision-Makers
In addition to the Waters Act and Water Board process described previously, the Yukon government has a very broad legislative authority to regulate mineral exploration in Yukon. The main decision-makers and pieces of legislation that govern the management of mining and mineral exploration activity in Yukon include:
- Department of Energy, Mines & Resources: Quartz Mining Act; Placer Mining Act; Territorial Lands (Yukon) Act.
- Department of Environment: Environment Act; Waters Act; Wildlife Act.
- Water Board: Waters Act.
- Department of Tourism & Culture: Historic Resources Act.
- Yukon Workers’ Compensation Board: Occupational Health & Safety Act.
There is other legislation that may apply, particularly to exploration programs with larger established camps or more advanced exploration work such as underground programs: Department of Community Services (Electrical Protection Act; Gas Burning Devices Act; Building Standards Act); and Department of Health & Social Services (Public Health & Safety Act)
