Placer mining is the mining of stream bed (alluvial) deposits for minerals, and in the Yukon particularly for gold. Historically placer mining involved small scale panning, but today’s modern placer industry involves large machinery that can quickly process vast quantities of material. While the industry has changed greatly from the Klondike Gold Rush in the 1890s, the legislation that regulates it has remained largely unchanged, creating concerns about how to balance the environment, economy and First Nation rights. Fortunately, recent developments indicate that things are about to change.
THE CURRENT PLACER MINING REGIME
Placer mining in the Yukon is regulated under the Yukon Placer Mining Act, S.Y. 2003, c.13, and, for larger undertakings, the Yukon Waters Act, S.Y. 2003 c.19. That legislation remains largely unchanged since the early 1900s and many of its provisions are now outdated. While some of these historical anomalies are simply interesting (the time you have to record your claim is based on the time it would take to travel to the Mining Recorder’s office by horse), others have resulted in mounting concerns from First Nations and environmental groups as the scale and impact of mining grows.
While the placer industry remains a significant employer and contributes to local economies, there is increasing pressure to modernize the legislation to ensure that this economic contribution does not come at undue cost to Yukon First Nation rights and the environment on which all Yukoners depend.
Working with First Nation clients we have identified many issues with the current regime. Below we focus on three key issues: indefinite tenure, misuse of placer claims, and mining in ecologically and culturally sensitive areas.
Indefinite tenure
The monetary value of work a miner must carry out each year to maintain a claim (“assessment work”) has remained unchanged at $200 for over 100 years. If this value merely kept pace with inflation, it would exceed $4,500. The low value of work required, and the ability to carry work over from year to year, means that many claims can lie idle for decades, preventing the land from being put to other uses that would provide economic and social value.
Exacerbating the problem, renewals of placer claims are automatic, provided that the miner pays the fee ($10 per year) and has done the required assessment work. This means there is no discretion to refuse renewals, and no consultation with First Nations or the public as to possible alternative uses of the land.
Certain provisions of the 2001 Devolution Transfer Agreement that transferred administration of lands and resources in the Yukon from Canada to the Yukon government (the “DTA”) preclude the Yukon government from rejecting renewals of pre-April 1, 2003 placer claims for anything other than failure to perform the minimum value of assessment work. However, our view is that the legislation should provide for government discretion and consultation for renewal of placer claims arising after April 1, 2003, as well as increased assessment work requirements.
Misuse of claims
Mineral claims are granted for the purpose of mining, yet many have become residential properties, junk yards and sets for reality television. The Final Agreements of Yukon First Nations permit access to Settlement Land for mining purposes, subject to a condition that miners do not cause unnecessary damage or unnecessary interference with the use and peaceful enjoyment of Settlement Land. Similarly, the PMA provides miners with a right to enter on a claim “for the miner-like working of it” (see s.48(c)). Misuse of claims on Settlement Land creates unnecessary interference is not miner-like working. Stronger enforcement of these provisions would ensure that claims are either used for mining purposes, or vacated to allow other uses of benefit to communities.
Mining in ecologically and culturally sensitive areas
The Yukon operates under a free entry regime, and claims can be staked on any lands in the Yukon, subject to limited exceptions. As a result, mining continues to be permitted in many ecologically and culturally sensitive areas, such as wetlands and traditional use sites.
As one example, placer mining takes place in and around stream beds, and therefore particularly impacts wetlands. Wetlands are a crucial part of Yukon’s ecosystems, providing environmental services such as water filtration, carbon sequestration and wildlife habitats. Growing scientific evidence shows that the cumulative disturbance to certain wetlands, in particular the Indian River valley, because of placer mining is far more widespread than previously thought. That evidence also shows that certain types of wetlands (bogs and fens) cannot be reclaimed for all practical purposes because they take thousands of years to form.
Based on these facts, the Yukon Environmental and Socio-Economic Assessment Board determined in 2018 that proponents should not mine in undisturbed wetlands in the Indian River Valley. First Nations also take the view that the Yukon should adopt the precautionary principle and avoid placer mining in wetlands until there is clear evidence that the impacts of such activities can be adequately mitigated. Despite this, the Yukon government has continued to permit mining in Indian River wetlands provided that proponents develop reclamation plans.
The precautionary principle is particularly pertinent given the absence of land use plans for much of the Yukon. The development of regional land use plans was a key element of the bargain struck by First Nations, the Yukon Government and Canada in the Final Agreements. Yet the process has taken many years. Land use plans are now in place for North Yukon and the Peel Watershed, but not for the vast majority of areas with active development, such as the Goldfields outside Dawson. A key issue is that existing claims have, in the past, been grandfathered into land use plans, meaning that mining can continue even in areas identified for protection. This makes continued staking of claims in ecologically and culturally sensitive areas of even more concern.
Impacts on ecologically and culturally sensitive areas are further exacerbated by the fact that placer miners often create new roads and trails to access their claims. Those roads can then be used by others to access previously undisturbed areas and harvest wildlife or stake new claims. There is currently no effective legislation to control development of new access or use of these resource roads.
NEW INITIATIVES
A number of recent and ongoing initiatives provide hope that issues with the current placer regime may soon be addressed.
Development of replacement legislation
Under the DTA, the Yukon government agreed to work with First Nations to enact successor mining legislation to replace the Placer Mining Act and the Waters Act. More than 15 years later, that has not yet happened. However, in 2017 the Yukon government, the Council of Yukon First Nations and the self-governing Yukon First Nations signed a Mining Memorandum of Understanding. Under that MOU, in November 2019 the Yukon and Yukon First Nations established an independent panel to develop and recommend a draft Mineral Development Strategy. That Strategy will include recommendations on new mining legislation, and is expected to submit recommendations to the Yukon Government and First Nations in January 2021. You can read more about the Mineral Development Strategy here: http://yukonmds.com/
In addition, the Yukon government and Yukon First Nations have established a Successor Resource Legislation Working Group, whose mandate includes developing new legislation to replace the Placer Mining Act and the Waters Act. This Group will build on the work of the Mineral Development Strategy.
Regional Land Use Plans
The Tr’ondëk Hwëch’in are currently working with the Yukon Government and stakeholders to develop a Land Use Plan for the Dawson Region. The Plan will cover important wetlands including the Indian River watershed, which produces more than 50% of the Yukon’s placer gold every year, and will be an opportunity to identify areas for protection and for development. The Dawson Regional Planning Commission currently estimates that a final land use plan will be approved in January 2022. You can read more about the Dawson Regional Land Use Plan here: https://dawson.planyukon.ca/
Yukon Water Board hearing on wetlands
The above initiatives should lead to much needed legislative change, but will take several years. Many First Nations, environmental groups and Yukoners are concerned about the impact of placer mining in the meantime. That concern appears to be shared by the Yukon Water Board, which is responsible for issuing water licences for larger placer projects. The Yukon Water Board recently announced that it will hold a public hearing on the issue of placer mining in wetlands. We anticipate that the hearing will take place in early 2020.
Aldridge +Rosling LLP is working with Yukon First Nations to ensure these new initiatives address the concerns of Yukon First Nations, provide stewardship of Traditional Territory, and respect First Nation rights.
The information provided above is a summary and is not intended to be legal advice. Aldridge + Rosling LLP has expertise assisting modern Treaty First Nations on environmental issues, inter-governmental relations and the development of new legislation. Please contact us if you have any questions or require formal advice.