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As regulators allow the Kudz Ze Kayah mine to proceed, court fight continues

YESAB decision document reissued earlier this month. Court of Appeal will hear case in September
A decision on the Yukon Environmental and Socio-Economic Assessment Board’s website has approved the Kudz Ze Kayah mine project. (Courtesy/BMC Minerals)

A March 8 decision document posted on the website for the Yukon Environmental and Socio-Economic Assessment Board (YESAB) says the Kudz Ze Kayah mine project should be allowed to proceed. The document’s release came roughly five weeks after the Ross River Dena Council (RRDC) appealed a Supreme Court of Yukon decision regarding the mining project on behalf of the Kaska Nation.

The decision document and the appeal are the latest developments in a proposal that’s been at some stage of the regulatory process since 2017, when BMC Minerals (a U.K.-based company) initially submitted its proposal.

The company is looking to operate an open pit and underground copper, lead and zinc mine 115 kilometres southwest of Ross River on Kaska traditional territory.

The Liard First Nation (LFN) posted a comment in March 2021 opposing the project.

“LFN believes that the committee’s lack of attention to rights impacts and the likely ineffectiveness of proposed mitigations means that it cannot reasonably determine either the effects on wildlife and Kaska rights or the extent to which proposed mitigations will reduce or eliminate those effects,” read the comment, signed by Travis Stewart, who works in land and resources for LFN.

Stewart’s was one of dozens of comments posted to YESAB’s website.

The Wildlife Conservation Society Canada posted a comment raising specific concerns about adverse effects on the Finlayson caribou herd, including habitat loss, displacement and disturbance.

The RRDC submitted a comment highlighting the Ross River Dena’s roots in the area. It cited the land’s use for large and small game hunting, the sensitivity of the area’s caribou and fresh water sources, and the proposed mine’s location at the headwaters of streams or creeks that feed water systems.

There were also comments supporting the project, including one from Jon Rudolph, vice president of operations for Cobalt Construction.

The project was initially approved on June 15, 2022.

A decision document issued by three decision bodies, Natural Resources Canada, Fisheries and Oceans Canada, and the Government of Yukon (YG), acknowledged concerns raised by LFN and RRDC, including the project’s potential to impact the aboriginal rights of the First Nations.

“The decision bodies fully considered these issues and concerns in their decision-making for the project,” the report read. It went on to propose mitigation strategies, including requiring BMC Minerals to “develop a caribou effects monitoring and mitigation program as part of the Wildlife Protection Plan (WPP) under the Quartz Mining License. The WPP will require review and approval by YG regulators and will require consultation with Kaska First Nations.”

However, the RRDC took the federal and territorial governments to court, saying neither had appropriately consulted with Kaska before making the decision.

This was partly based on a lengthy statement the RRDC filed on June 14, 2022, the day before the decision document was posted.

In January 2024, Chief Justice Suzanne Duncan of the Yukon Supreme Court found that, although the First Nations weren’t properly consulted, it wasn’t for lack of trying on the part of the government.

Duncan ruled that consultation should take place regarding the statement submitted on June 14.

The 69-page YESAB decision document issued on March 8 addressed Kaska’s “feeling of uncertainty” as far as their involvement and influence.

“The first component to engagement on the project will be YG and Canada to ask Kaska how they would like to be consulted with and engaged throughout the process,” reads the decision. “The decision bodies are committed to ensuring Kaska involvement throughout the life of the project.”

The report went on to suggest a project agreement that could involve representatives of the territorial and federal governments, LFN and RRDC. It states that these could include measures such as oversight committees, consultation plans and elder advisory panels. These and other tools could be used to gauge the effectiveness of mitigation work.

“The decision bodies see project agreements as an effective tool to formalize how parties work together, confirm roles and responsibilities of each party, enable establishment of committees and working groups, establish communication and reporting requirements, and establish decision making protocols,” the document reads.

“Establishing project agreements could enable Kaska to bring forward traditional knowledge throughout the project and provide opportunities for participation from land stewards and game guardians.”

RRDC filed their appeal of Duncan’s 114-page judgement on Feb. 1, asking that both Duncan’s original ruling and the decision document from June 2022 be set aside. The notice states that the presiding judge “erred in her assessment of the Crown’s constitutional duty to consult” with impacted Indigenous communities. Respondents to the appeal are listed as the Yukon government, attorney general of Canada and BMC Minerals Ltd.

Following the notice of appeal and prior to the release of the March 8 decision document on the assessment status of the Kudz Ze Kayah mine project, Justice Gregory James Fitch dismissed a stay application advanced by Kaska’s legal representatives on Feb. 29.

The application called for Duncan’s order that consultations be restarted to review Kaska’s June 14, 2022 submission — and that a new decision should be issued within 30 days of the consultations concluding — be stayed “pending the determination of the appeal.”

“By this application, Kaska seeks to stay issuance of the new decision document until its appeal is heard. On that appeal, Kaska asserts, among other things, that the judge erred in her assessment of the adequacy of the consultation undertaken in this case. Kaska’s concerns, and its grounds of appeal, go well beyond the Crown’s failure to consult in relation to the June submission,” reads Fitch’s judgement.

In their submissions to Fitch, Kaska Nation stated that their appeal would argue that Duncan erred in her finding that the Crown failed to consult only regarding the June submission. They expressed concern that the issuance of a new decision on March 8 could render an appeal unnecessary, “thereby irreparably damaging its right to have the appeal heard on the merits.”

Kaska also noted that refusal of their requested stay could irreparably damage not only their traditional lands but also reconciliation efforts between the First Nations and the Crown.

In his judgement, Fitch said he was unpersuaded by the argument that denying the stay would render an appeal moot. He further noted that there is no evidence that Kaska’s traditional land will be altered in any way before there is a decision on their appeal.

“I am also unable to accept the appellant’s position that refusing the stay will irreparably impair Crown-Indigenous relations or pursuit of the goal of reconciliation through consultation,” Fitch stated, later adding, “If the appellant is ultimately successful on appeal, the harm said to have been done is reparable through judicial intervention.”

The Yukon Court of Appeal, the territory’s highest court, will hear the matter on Sept. 12 and 13 of this year.

Contact Amy Kenny at