By Tristin Hopper With only a prospector’s license, some wooden stakes and a pouch of metal tags, anybody over the age of 18 can stake a mineral claim in the Canadian North. More than 100 years after the first mining stakes were driven into Northern land, the free-entry staking system remains the primary catalyst for every scrap of metal pulled out of the North, be it from the Klondike Gold Rush, the Cantung Tungsten Mine or the Diavik Diamond Mine. In the words of Yukon prospector Shawn Ryan, “it all starts with a prospector banging a rock.”
Free-entry staking developed the North, but lately, the medieval-era system has a growing roster of opponents. Aboriginal groups are calling it a violation of the duty to consult. Tourism operators are calling it an unfair priority for land use. City councils see it as a violation of their municipal sovereignty. Even cross-country skiers are up in arms after stakes began popping up along a network of Whitehorse ski trails. In an age of Aboriginal title, eco-tourism and land-use planning, the glory days of free-entry staking appear to be coming to an end.
That’s fine for critics who deride the practice as a colonial relic. “It’s a remnant from the mentality of the 1890s, when the North was seen as undeveloped, and the best and easiest way of using the land was through mining,” says Lewis Rifkind, mining coordinator for the Yukon Conservation Society. For Northern land-use planners, heavily-staked landscapes are an organizational headache. “Free-entry is very obtrusive, and because it trumps everything else it kicks land-use planning in the shorts,” says Rifkind.
The Peel Watershed is an unsettled wilderness area making up about one fifth of the Yukon. When regulators sat down to draft a land-use plan for the watershed in 2004, the area only had 1,600 mining claims. Four years later, a mini staking rush drove that number to more than 8,400. Before the Peel Commission had even written a draft plan, almost two-million square kilometres of land had been set aside for mining. It did not sit well with regulators. “The mining spokesmen assert that open staking and open access to minerals is a ‘right,’” wrote the Peel Planning Commission in a 2009 letter. “The problem is that by its very nature, exercising this right undermines what is valued by others: the wildness, the biological richness, the roadlessness of the country.”
Free-entry staking breeds “uncertainty,” says Dave Loeks, a member with the Peel Planning Commission. Through free-staking, miners are able to maintain certainty of access over the entire landscape. In so doing, they strip away the land-use certainty of everyone else, he says.
Whitehorse city planners would agree. In May, the city launched its official community plan, a document celebrated for the fact that it designated more than half the city as green space. Underlying many of those green spaces, however, are mining claims. “It’s essentially an unresolved conflict,” says Mike Ellis, Whitehorse’s senior planner. “We’re operating under the Municipal Act but the Quartz Mining Act says something else is allowed. It’s almost a matter for the courts to decide.”
Meanwhile, the BC-based Kaska Dene Council are looking to use the courts to stamp out free-entry staking altogether – at least where there are unsettled land claims. In 2008 outside Watson Lake, prospectors Ronald Stack and Gary Lee staked a mineral claim on the traditional territory of the Liard First Nation – a member of the Kaska Dene Council. Two years later, the Kaska hauled the prospectors and the Yukon government to court, arguing that the staking was a violation of the government’s duty to consult.
Fishers can’t stake rivers, loggers can’t stake forests and oil companies can’t stake petroleum reserves. So why do miners get first dibs on land-use? It all comes down to probability, explains prospector Shawn Ryan. “We need lots of prospective land to look at, and there’s only going to be a fraction of that space that’s actually going to hold an ore body,” he says. Giving prospectors first priority to land improves their chances of finding minerals and provides greater incentive to continue scouring the landscape for future mines.
Even in the age of satellite imaging and high-tech survey equipment, minerals remain a wily resource. Unlike lumber, oil, or natural gas, it’s extremely difficult to pinpoint the precise location of a copper seam or a gold deposit. As a result, prospectors typically need to inspect hundreds of hectares of land before stumbling upon anything worthwhile. “It’s like being a farmer, except only one piece of your plot is going to make you money, so you need a lot of it,” says Ryan. “You’ve got to kiss a lot of frogs before you find the prince.”
While it may be intimidating to find a stake driven into your front yard, staking a claim is only step one in a long and complicated regulatory process. “Claims don’t pre-empt other uses of the land. All you’ve done is convey a right to the minerals, you haven’t conveyed a right to the surface of the land or anything else,” says Bob Holmes, director of mineral resources for the Yukon government. To get your claim to mine status, first you’d need to secure surface rights. Then you’d need to get your project approved by an environmental regulator. After consulting with First Nations, registering for a slew of permits and likely holding a few public hearings, you’ll be ready to dig. Needless to say, the overwhelming majority of claims never make it this far. The Yukon has 92,475 active mineral claims, but only one hard-rock mine.
With such low odds, every hectare declared off-limits to staking lowers the chances that a prospector will ever find paydirt. Beneath every national park and unstaked wilderness area could be billions of dollars in new resources. “From a geologist’s perspective, you never really know what you might be giving up,” says Mike Burke, head of mineral services for the Yukon Geological Survey.
It has been speculated that the White Gold property, 75 kilometres south of Dawson City, is the long-sought motherlode, the source of all the nuggets and flakes that fueled the Klondike Gold Rush. Owner Underworld Resources estimates that the claim holds more than 1.5 million ounces of gold – a find equal to almost $2-billion. And if it wasn’t for a couple of teaspoon-sized soil samples, prospector Shawn Ryan would have missed it. Later drilling revealed the deposit to be more than 12-kilometres long, but only a fraction of it protruded into soils shallow enough to be picked up by sampling instruments.
A viable ore deposit is a needle in a haystack, says Ryan. The more regulators cut down on the number of available haystacks, he says, the more Northern prospectors will start cutting out for Australia. Or worse, a claim-holder could wake up to find their claims surrounded by a protected area – effectively preventing the construction of access roads to develop the claim. For prospectors, the odds are becoming increasingly less favourable. Today, more than 25 per cent of the Yukon Territory is closed to staking. “This relentless and ever-increasing alienation of land from economic activity will hurt the Yukon’s mining industry, the Yukon economy and the Yukon labour force,” wrote the Yukon Chamber of Mines in a 2009 letter, “to the detriment of all Yukoners.”
From a government perspective, free-entry staking remains the best way to ensure that as much metal as possible is discovered and mined. Historically, minerals were pulled out of the ground by slaves. Gold for Egyptian jewellery and iron for Roman swords was dug out by teams of bondaged, unwilling miners. In medieval England, the free-entry concept was conceived as an efficient way of getting free men to find and dig up minerals. It was a win-win concept: Prospectors got a job, and England’s economy was soon swimming in new metal. Entrepreneurs suddenly became the drivers of discovery. “Governments aren’t in the best position to know what’s there and what isn’t there,” says Holmes. Allowing teams of independent prospectors to roam the countryside ended up being the best way to find out.
But how do you keep your teams of prospectors happy while juggling the modern-day needs of tourism, logging, and aboriginal groups? Staking may have left a sour taste in the mouths of Peel Watershed planners, but land-use planning and free-entry staking are not necessarily incompatible. The Gwich’in Settlement Area is a 56,935-square-kilometre region in the Northwest Territories comprising Aklavik, Inuvik, Fort McPherson and Tsiigehtchic. The area’s land-use plan, introduced in 1993, shuts out 11 per cent of the region to mineral exploration, while keeping the remaining 89 per cent open to staking. Rather than balking at the lost 11 per cent, mineral developers have cheered the peace of mind they enjoy in the remaining sectors, says senior planner Susan McKenzie. Prospectors staking in the mining-friendly 89 per cent of the Gwich’in Settlement Area are assured a smoother regulatory process, which makes for more efficient mining. “It helps developers focus their efforts on areas where they know the likelihood of getting authorization is a lot better,” says McKenzie.
Still, as long as any form of free-entry staking exists in the North, says Whitehorse-based economist Malcolm Taggart, mining has a leg-up over all other forms of land-use. “You can do land-use planning, you can withdraw areas from staking,” he says, “But you’re constantly running into this fundamental idea that mining is the highest and best use of the land.” As long as free-entry exists, society essentially acknowledges that mining takes precedence over every other industry or group, he adds.
It’s not a statement that many prospectors dispute. “Initially, prospectors need maximum access to a maximum amount of land,” says McFaul, “because we don’t know where this stuff is hiding.” The North simply can’t afford to lock away trillions of dollars in resources beneath protected areas, he adds. Certainly, he has a point: It doesn’t look like humanity is showing any signs of kicking its addiction to metal. “Imagine going out into the bush without an axe,” says Ryan. “We need mineral deposits to live, and if we don’t figure out how to find these things, we’re hooped.”
