The Supreme Court of Yukon has overturned a Yukon government decision to allow a mineral exploration company to do further work in the White River First Nation’s traditional territory near Beaver Creek.
In a July 5 decision, Justice Ron Veale overturned the government’s decision. The government did not properly consult with the First Nation, the decision says. The government needs to consult further with the First Nation, at the government’s expense, before it issues the licence.
Both the First Nation and the Yukon Environmental Socio-Economic Assessment Board had objected to the licence, but the government granted it anyway.
White River First Nation has been fighting the project for months. The small First Nation has not signed a land claims agreement, and does not intend to.
“We’re very pleased as a small First Nation that we were able to follow this process through to the end,” said Janet Vander Meer, the First Nation’s lands co-ordinator.
Tarsis Resources has been exploring for gold, copper and silver in the area since 2010. In March 2012, the company applied for a five-year Class 3 Licence. This would let it use excavators and drilling rigs, and to fly in helicopters up to 10 times a day. The 1,280 hectare area can only be reached by helicopter. The company wanted to do this from May to October each year.
The First Nation was worried this would negatively impact its water, lands and traditional way of life, like hunting and trapping. It was particularly concerned about the Chisana caribou herd. The herd is endangered - its population dropped from around 1,900 in the late ‘80s to only 315 in 2002. It is stable at around 700 animals now, but it remains illegal to hunt them. The First Nation has had a voluntary hunting ban in place for nearly 20 years.
The First Nation was involved in the environmental assessment process for the project. It paid for a study to see how exploration would affect its land. In July 2012, the Yukon Environmental and Socio-economic Assessment Board recommended against granting Tarsis its licence. Damage to the land and caribou could not be reduced, the 79-page report says.
But the government disagreed. In September, it decided to give the company the licence.
The First Nation sought a judicial review, saying it had not been consulted properly.
In his decision, Justice Veale agreed with the First Nation.
Under common law, there is a duty to consult with the First Nation - even if it doesn’t have a signed land claim agreement, he said.
“It is disingenuous to suggest that the First Nation has a weak claim. It is a strong claim,” wrote Veale in his decision.
Consultation occurs on a spectrum, he wrote. In some cases, giving a First Nation notice of a project or providing submissions to them is enough. But other situations call for deep consultation that will lead to changes.
“The consultation was not full and fair,” Veale wrote in his decision.
The government withheld information from the First Nation, the decision says. On Aug. 16, 2012, the chief of mining land use called Troy Hegel, a caribou biologist who is a member of the working group for the Chisana herd management plan. Hegel confirmed Chisana caribou had been sighted in the exploration area. There weren’t many in the main work area, but a number did return to the eastern part each year. Dangers to the caribou could be reduced by rerouting helicopters and only working in the area from Sept. 15 to Oct. 31, the decision says.
The government met with the First Nation after this phone call. But the First Nation did not learn about Hegel’s findings until they were filed with the court in January.
Hegel used radio telemetry data to get his information, not the First Nation’s traditional knowledge.
“The First Nation should have had the opportunity to put forward a technical expert, challenge the telemetry data and present their traditional knowledge,” Veale wrote in the decision.
Both Tarsis and the Yukon government said consultation is an ongoing process, the decision says. But decision documents are “significant” and need to satisfy the criteria for consultation, Veale wrote.
“Shortcomings in the consultation process at this stage cannot be addressed on the basis that there will be further consultation,” he wrote.
Vander Meer praised the judgement for valuing the First Nation’s traditional knowledge. It shows the government needs to “equally respect the knowledge of our people,” she said.
“It’s a good thing for all of us, for signed and un-signed First Nations,” said Vander Meer.
The Tr’ondek Hwech’in First Nation is also “pleased” with the government’s decision, Chief Eddie Taylor said in a release. But it is “alarmed” by other claims White River First Nation is making, the release says.
In a release issued after the court’s decision, White River Deputy Chief Dwayne Broeren says the First Nation wants meaningful government consultation on all mining projects in its traditional territory, including the Kaminak Gold’s Coffee project and Western Copper’s Casino project.
But those projects are really happening on Tr’ondek Hwech’in land, Taylor said in the release.
Neither Broeren nor Taylor were available for interviews before press time. Vander Meer would not comment on the Tr’ondek Hwech’in’s response.
But White River will always be prepared to fight for its rights, she said.
“We’re not a little First Nation that’s going to sit there,” said Vander Meer. “We’re going to speak for ourselves.”
“My grandpa walked that territory, and it’s a privilege to advocate for my nation, and for our ancestors,” she said. “And that’s what we’re doing.”
Contact Meagan Gillmore at
mgillmore@yukon-news.com