In a judicial review of the Yukon Government’s decision to approve a mining exploration project in the Beaver River watershed, the Yukon Supreme Court ruled in favour of the First Nation of Na-Cho Nyäk Dun (FNNND) who brought the issue to court.
A decision on the matter from Yukon Supreme Court Chief Justice Suzanne Duncan was made public on Jan. 31.
FNNND first challenged the approval of the exploration project proposed by Metallic Minerals Inc. in early 2021. FNNND’s chief Simon Mervyn called the approval of the project while land use planning for the watershed was ongoing “a disrespectful decision” by the Yukon government shortly after the court challenge was filed. From the start FNNND has been seeking an order quashing the territorial government’s decision to approve the exploration project.
The Beaver River Watershed known to FNNND as Tsé Tagé, is located north of Keno City.
The project as approved would have allowed Metallic to conduct exploration work in the watershed every summer for ten years.
The government had asked the court to set aside FNNND’s petition for judicial review in late 2021 but the court opted to proceed.
FNNND argued that the government’s decision to approve the project was unlawful because it breaches the government’s duty to consult and if necessary accommodate the First Nation as set out in their final agreement. The First Nation also alleged a breach of the government’s duty to keep promises set out in the agreement including the promise to conduct land use planning in FNNND’s traditional territory including in the watershed the exploration work was planned for.
The Yukon Government’s lawyers argued that the decision to approve the work was lawful and complied with its requirement to consult with FNNND. Metallic Minerals is a party in the legal challenge but did not take a position or send lawyers to make arguments.
Duncan decided that the government’s decision to approve the project should be quashed based on the Yukon Government’s failure to properly consult, failure to act in accordance with the final agreement and failure to engage with the submissions and evidence provided by FNNND before making its decision.
The Yukon Supreme Court’s decision includes declarations that the Yukon Government breached its duties of good faith and “duties flowing from the honour of the Crown” relating to upholding the final agreement. The court did not make a finding or declaration on whether the government had diligently implemented the promises of the treaty including those related to land use planning.
The decision states that the matter of the exploration project will be returned to the Yukon Government for further consideration.
-With files from Gabrielle Plonka and Lawrie Crawford
Contact Jim Elliot at jim.elliot@yukon-news.com