Kaska law will govern use of resources on traditional territory

A lawyer who represents the Kaska says Yukon Premier Darrell Pasloski may not understand how the Kaska have the inherent right to self govern.

Steve Walsh was referring to comments made recently by Pasloski.

The premier told CBC News that because the Kaska haven’t signed a final land claim and self government agreement, they still fall under the Indian Act, and can’t pass their own laws.

The five Kaska First Nations have issued a declaration, saying they will pass a Kaska resource law this summer.

They say it will be used to govern the use of resources on Kaska territory.

Walsh says the Constitution clearly outlines the rights of First Nations when it comes to governing themselves.

“I was very surprised to hear Premier Pasloski refer to the Indian Act .. the inherent right of self government was recognized by the government of Canada 20 years ago in 1995,” he says.

“It’s a right protected under section 35 of the Constitution Act 1982 as an existing aboriginal right. So the question whether the Kaska can pass a resource law has nothing to do with the Indian Act, it has to do with their inherent right of self government.”

The Kaska also take exception to Pasloski’s reference to “asserted” aboriginal rights and title.

Walsh says the Kaska have signed agreements with the Yukon government, in 1997 and 2003, that did acknowledge title.

“They contain very clear acknowledgements of the Kaska’s aboriginal title and rights to their traditional territory….those agreements were negotiated and concluded in good faith and I think that for the government to turn around, after the government obtained what it wanted under those agreements…and then repudiate that title and rights is inconsistent with the honour of the Crown and constitutes bad faith.”

Walsh says “there’s a world of difference” between recognition of asserted aboriginal title and acknowledgement of aboriginal title.

He says the Kaska also have strong case law on their side, referring to the 2012 decision by the Yukon court of appeal on quartz mining claims staking within the traditional territory of the Ross River Dena Council, one of the Kaska nations.

“The Yukon Court of Appeal, the territory’s highest court, recognized in crystal clear terms that aboriginal title includes title to resources. And the Kaska take that clear statement of the law and combine their inherent right to self government and decide that they intend to pass a Kaska resource law.”

Walsh says the resource law is about providing certainty for industry.

“The real question isn’t whether the Kaska can enact a resource law, the real question is whether such a law will help to promote investment and development of Yukon’s resources and what I understand is that industry is responding very positively. They like the idea of having a clear set of rules to operate by.”

And mining companies with properties in the Kaska territory are soundly endorsing the idea.

Lee-Sheriff is enthusiastic about the resource law. She says her company already has an exploration memorandum with the Kaska.

“We see this as a very exciting time for the Kaska and for ourselves,” she said.

“We’re very excited by the announcement. We’re…accustomed to adhering to government legislation and we don’t see this being any different than similar working relationships we’re expanding on with the Kaska.”

Lee-Sheriff says such a law would be very helpful to companies such as Golden Predator.

“Our concern and our objective is to make sure that we maintain an excellent working relationship and go forward together.

“It’s important that we all are together on these things and it’s the only way you’re going to make mining happen. The Kaska have never been ‘anti-mining.’ They’ve been very supportive of us, and I don’t want to speak for them but I view it as they just want to be partners in the process and be at the table.”

Earlier this month, North American Tungsten called the Kaska resource law an “exciting and positive” development.

Yukon should stop ‘butting heads with First Nations:’ lawyer

Bill Gallagher, a lawyer who specializes in aboriginal rights and resource development, was a keynote speaker at November’s Yukon Geoscience Forum.

Gallagher advises the Yukon government to stop “butting heads with First Nations” and instead engage them in a “genuine fashion.”

He says industry recognizes that need.

“They say ….‘we’re going to be tenants one way or another, we are not the resource owner, we’ll work with whoever can give us certainty,’” he says.

“There’s a key message North of 60. First Nations are emerging as resource rulers and this group, the Kaska, are definitely in the ‘top ten’ of that list in the country. They are well on their way to calling the shots in terms of accepting projects they are prepared to participate in and denying projects that they don’t want.”

Walsh says the Kaska are willing to work with the Yukon government.

The Kaska have said they are not seeking to replace Yukon government laws with their resource law.