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FNNND argues Yukon breached its’ constitutional duty to implement Treaty promises – Yukon News



Na-Cho Nyäk Dun says it’s been left with “an empty shell of treaty promise.”

In its petition to the Supreme Court filed on March 22, the First Nation of Na-Cho Nyak Dun (FNNND) says that “Yukon believes it is free to simply authorize any development it wishes, wherever and whenever it sees fit, regardless of FNNND’s concerns.”

As a signatory to one of the first four First Nation Final Agreements in 1994, the bloom of possibility has faded.

FNNND is asking the courts for assistance after they say they’ve witnessed enough development and experienced too little consideration for their treaty rights.

“The treaty promise of land planning is meaningless if there is no land left to plan when the planning finally begins. It is meaningless if nearly 30 years — an entire generation — can pass without the promise being acted upon,” the petition states.

This court case has been ongoing since March 2021, when the FNNND government first brought the case against the Yukon government and Metallic Minerals for the approval of 52 quartz claims on its traditional territory. The First Nation said that land use planning needed completion and that consultation hadn’t occurred.

On March 28, FNNND’s lawyer Nuri Frame told the News that since the case was first filed, the Yukon government has tried various means to end the lawsuit. In September 2021, the government’s petition to dismiss NND’s case was struck down.

Supreme Court Justice Suzanne Duncan found that “FNNND’s allegations in the petition … are supported by the material facts pleaded.” In other words, a full hearing of the case would go ahead. That hearing is scheduled for the first week of May 2022.

The Yukon government will submit a rebuttal to FNNND’s March 22 petition by April 14.

An official with the justice department declined to provide comment on this matter while it’s before the courts.

Frame said that this case is making many of the same arguments as two earlier landmark decisions — the Peel Watershed decision in regards to land use planning in 2019, and the decision in favour of Little Salmon Carmacks vs Beckman regarding the duty to consult in 2010.

The decisions also upheld the principle of “the honour of the Crown [which] requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples.”

Modern Yukon treaties

Canada, Yukon and FNNND signed one of the first modern treaties in Canada in 1993.

In the First Nation’s petition, several of its leaders describe the treaty as ultimately serving disappointment.

“Yukon has yet to really implement the Agreement with the spirit and intent of the signing ceremonies that gave us so much hope,” said FNNND councillor Barb Buyck.

One of the central promises contained in the land claims agreement was a commitment to the development of a common Yukon land use planning process, which was to provide the foundation for co-governance and co-management.

Quotes from First Nation elder and former negotiator, Albert Peter, are also included in the petition.

“The intention of the agreements was to protect the land and waters so we could protect the animals, thereby protecting our rights and our way of life,” Peter said.

“We still want —a settlement with protection for the land, water, forests, wildlife, and our rights. We want to work together, government to government.

“We want to be able to manage activities on the land together, as equal partners.”

Staking rush in Mayo district

Since 2006, the YESAB registry lists over 500 quartz and placer mining projects put forward on the traditional territory of the FNNND. Only one project has ever been declined, three were approved without conditions, and the remainder were approved with variances.

FNNND’s petition says that the Yukon government repeatedly states that “the final agreements do not contemplate the cessation of all development activities until land use plans are complete.” The petition notes that it has been 29 years.

Dawna Hope, an FNNND citizen, is quoted, “I’ve flown over this area many times, I don’t even know what to say, there’s so many roads, trails out there. What is left to plan? I don’t know. All I know is, we have the highest rate of mining and industry impacts in my traditional territory.

“We’ve heard for many years that land use planning takes up too much time. We’ve had our final agreements signed since 1994, we’ve been waiting, waiting patiently, we’ve asked for it in 1995, were still waiting, and not just for a tiny subregional plan, we want regional planning.

“We want certainty for this area, we want certainty for harvesting, and practicing our culture into the future. For not just my generation but generations to come.”

FNNND’s position

The petition opens by saying that the Yukon’s approach is deeply flawed, and closes by saying that the treaty promise of land use planning is meaningless if Yukon can simply insist that land use issues can be disregarded prior to the start of planning.

In the last few years, FNNND has been clear in YEASA submissions that the First Nation does not support further mineral development until a regional land use plan is ratified. It has said the same thing in multiple submissions – for Metallic Minerals, Golden Predator and Coffee Creek.

The petition before the court says that Yukon’s decision to approve Metallic Minerals’ project is incorrect, unreasonable and indefensible and asks the Court to quash and set aside.

— With files from Jim Elliot

Contact Lawrie Crawford at lawrie.crawford@yukon-news.com





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