The Yukon Supreme Court sat for six days to hear the Ross River Dena Council bring a court challenge on behalf of the rest of the Kaska Nation opposing the consultation process for a proposed mine in the southeast Yukon.
The mine in question is the proposed Kudz Ze Kayah project, set to be a mixed open pit and underground copper, lead and zinc mine. Listed as respondents on the lawsuit are the Yukon government, the Attorney General of Canada and BMC Minerals, the company seeking to set up the mine.
Assessment of the mine project has been a fraught issue for years now. The project was launched in 2017 and it was recommended for approval by the executive committee of the Yukon Environmental and Socio-economic Assessment Board (YESAB) in 2020 but then sent back to the drawing board by the federal government. The following review led to a tie vote of YESAB’s executive committee in spring 2021.
After the matter reverted to YESAB’s initial decision and in June 2022, the mine received approval from Natural Resources Canada, the Department of Fisheries and Oceans and the Yukon government. An immediately controversial point was that the Kaska sent in more information about the matter roughly 24 hours before the project’s approval.
The Kaska legal challenge followed a few months later seeking a court order quashing the approval of the project and compelling the decision bodies to undertake “meaningful and deep consultation” about the project.
Yukon Supreme Court Chief Justice Suzanne Duncan heard the case from April 11 to 17.
The Kaska’s primary concerns with the approval of the mine have been the substance of the consultation that the approving government bodies and the mining firm conducted with them and the possible impacts of the mine and associated infrastructure. A core issue is the Finlayson caribou herd, which the Kaska assert is a threatened population that relies on the lands the proposed mine would be located in.
Over the course of the trial, lawyers representing the territorial government, the federal government and BMC Minerals presented in defence of the project and the consultation process while representatives for the Kaska maintained the consultation fell short.
Lawyers speaking on behalf of the defendants contended that BMC had agreed to “material and costly” changes to the proposed design of the mine during the assessment process in response to concerns raised during the consultation process.
Roy Millen, one of the lawyers for BMC, provided examples. He noted the change from dry to wet tailings storage in the plan as well as changes to water treatment and the redesign of the mine access road to one lane road with passing lanes rather than a two lane road. The possibility of seasonal road closures or other accommodations for the caribou herd was also raised.
The respondents’ lawyers maintained throughout that quality consultation took place.
The lawyers for BMC argued that the consultation was sufficient and tried to pin delays and failures in the consultation process on the Kaska.
They argued that the Kaska knew about the June 15 deadline by which the decision bodies were going to rule on the approval of the mine and, waited until the last minute to present further information in their June 14 letter. Millen said the letter was received and considered but didn’t change minds or contain much in the way of new information.
Kevin O’Callaghan, another lawyer for BMC, acknowledged issues with the optics of the approval so quickly after the Kaska’s last submission but denied the substance of complaints about it.
Regarding the submission just before the decision deadline, O’Callaghan argued the Kaska “pushed the envelope on consultation to the point it was near frustration.”
He went on to state that consultation is not over and there will be more information considered during the licensing process if the project is not halted by the courts.
O’Callaghan said BMC is seeking an order from the judge setting the Kaska’s application aside. He added that if the court took issue only with the swift end of the consultation process, the judge could make a specific order with instructions to remedy the situation.
Towards the end of the proceedings, one of Kaska’s lawyers, Mark Youden, argued that the duty to consult doesn’t force Indigenous groups to prove that development will have a permanent impact on their guaranteed rights. He said consultation is a requirement if they can demonstrate the potential for adverse effects.
Youden also criticized the lack of specifics regarding the cumulative effects of the mine project presented to the court and noted the differing views on the health of the Finlayson caribou herd presented by Kaska’s experts and those presented by the government or the mining company. Earlier in the proceedings, the respondents had presented information they say shows that it is predation and other mortality causing problems for the herd, not issues with habitat; Youden said the Kaska disagree with this.
Also contrary to what the other side said, Youden maintains that the June 14 letter sent to the decision bodies did contain a substantial amount of new information.
Chief Justice Duncan thanked the lawyers on both sides for managing conflict and keeping the proceedings moving before saying she would reserve decision and present her findings this summer.
The case drew significant public interest with more than 30 people showing up in driving snow on the second to last day of the trial to stand outside the courthouse in a rally supporting the Kaska and their rights.
Conversation and brief speeches dealt with concerns over the health of the caribou herd and the Liard River basin as well as the case’s implications for Indigenous rights and territory. The court’s gallery was also well attended during the trial.
Contact Jim Elliot at jim.elliot@yukon-news.com