Yukon NDP pushes to restore requirement for First Nations' consent over oil and gas development

The Yukon NDP wants to reinstate a clause into the territory's oil and gas legislation that would require First Nations' consent for exploration and development activities to happen in their traditional territories.

This week, NDP Leader Kate White tabled a bill at the Legislative Assembly that was debated by MLAs.

Ten years ago, the former Yukon Party government repealed the clause, to the ire of First Nations. The move, in effect, torpedoed veto power First Nations held over oil and gas dispositions in their traditional territories. The clause was originally included to ensure certainty among parties while land claims were being negotiated.

White says the repeal was "unilateral," and that her bill is a way to atone for what she calls a mistake.

"It was a mistake that I couldn't stop and my colleagues couldn't stop, no matter how hard we tried to fight," she said.

"This is an opportunity to right the wrong that happened in 2012."

The issue goes back even further, to the territory's devolution agreement.

In 1997, Yukon First Nations, the Council of Yukon First Nations and the Yukon government signed a memorandum of agreement, which helped lay the groundwork for devolution. The agreement supported the transfer of land and resource management responsibilities from Ottawa to the territorial government, subject to stipulations to respect the rights and interests of First Nations. 

As part of the process, First Nations also agreed to the transfer of control over oil and gas administration. This helped pave the way for the consent clause, which, before it was repealed, forbade oil and gas dispositions without the consent of First Nations that didn't have signed final agreements.

First Nations throw their weight behind bill 

Several First Nations have sent letters to White in support of the NDP's bill.

Dylan Loblaw, the chief of the Ross River Dena Council, calls the decision by the former Yukon Party government "contentious," and one that flew in the face of Kaska chiefs.

The letter says that reinstating the consent clause "is the right decision and a positive step in demonstrating good faith and the Yukon government's genuine commitment to reconciliation, while reassuring the Kaska that the Yukon government is in support of the principles of human rights within the UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples], and mindful of Kaksa's constitutionally protected Aboriginal rights."

The bill has yet to pass the Legislative Assembly. MLAs could vote on it on Nov. 9, when the NDP can next introduce it.

Stephen Charlie, the chief of Liard First Nation, is also backing the bill. 

In a letter to White, he states free, prior and informed consent — a central tenet of UNDRIP — needs to be obtained for any development within unceded Kaska lands, located in southeast Yukon.

"It would drastically reduce the risk of monetary damages for infringement of Aboriginal rights and title or the failure to adequately consult and accommodate," Charlie wrote. "It would clarify for industry that they must achieve meaningful benefits agreements with First Nations whose legal interests would be impacted by their proposed projects.

"Consent provisions help drive relationship building and transparency so that fully informed participants and industry proponents can know early whether projects will obtain Kaska support."

Several Yukon First Nations that have modern treaties in place have also weighed in on the issue and are overwhelmingly in favour of re-adding the clause. 

Eric Morris, chief of the Teslin Tlingit Council, told CBC News he stands in solidarity with First Nations that are without final agreements. 

"Consultation is the first step," Morris said. "It's respect for who they are. Even though they're without a [final] agreement, they still deserve the same respect.

"They still have rights, they still have rights to their land, they have tenure just like we do, only under the Indian Act, that's the only difference," Morris said. "Any time we can stand together with them, in solidarity, on things around development, we definitely will."

Party politics

During the debate this week in the Legislature, Yukon Party MLAs stayed mum, and it remains unclear whether the territory's Liberal government is in support of the bill.

John Streicker, minister of Energy, Mines and Resources, told the Legislature that he supports "the principle of consent." 

"I also think that, in order to get consent, you have to work with First Nations to get that consent," he said. "I will also say that we work with First Nations directly to ask them priorities. I had not heard this one come up."

Streicker also asked whether White has entered into discussions with industry. White said she hasn't, adding she has contacted First Nations and continues to do so.

Asked by CBC News why she decided to table her bill now, White said that behind-the-scenes work has been ongoing for some time.

However, she said amending the legislation before the next territorial election also factored in.

"I want to make sure that [Liard First Nation and the Ross River Dena Council], that could be most affected by oil and gas development, have something to lean into if for example, the Yukon Party, who we know very clearly think that oil and gas should go forward, [forms government]."