Court quashes exploration permit

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.

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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Benjamin Poudou, Mount MacIntyre’s ski club manager, poses for a photo in the club’s ski rental area on Nov. 16. The club has sold around 1,850 passes already this year, compared to 1067 passes on Oct. 31 last year. (Crystal Schick/Yukon News)
Early season ski pass sales up as Yukoners prepare for pandemic winter

Season passe sales at Mount McIntyre for cross-country skiing are up by around 60 per cent this year

The City of Whitehorse will be spending $655,000 to upgrade the waste heat recovery system at the Canada Games Centre. (Crystal Schick/Yukon News file)
New waste heat recovery system coming to the CGC

Council approves $655,000 project

Yukon First Nation Education Directorate education advocates and volunteers help to sort and distribute Christmas hamper grocery boxes outside Elijah Smith Elementary School on Feb. 23. (Rebecca Bradford Andrew/Submitted)
First Nation Education Directorate begins Christmas hamper program

Pick-ups for hampers are scheduled at local schools

Cyrine Candido, cashier, right, wipes down the new plexi-glass dividers at Superstore on March 28, before it was commonplace for them to wear masks. The Yukon government is relaunching the Yukon Essential Workers Income Support Program as the second wave of COVID-19 begins to take place in the territory. (Crystal Schick/Yukon News file)
Yukon Essential Workers Income Support Program extended to 32 weeks

More than 100 businesses in the territory applied for the first phase of the program

Cody Pederson of the CA Storm walks around LJ’s Sabres player Clay Plume during the ‘A’ division final of the 2019 Yukon Native Hockey Tournament. The 2021 Yukon Native Hockey Tournament, scheduled for March 25 to 28 in Whitehorse next year, was officially cancelled on Nov. 24 in a press release from organizers. (John Hopkins-Hill/Yukon News file)
2021 Yukon Native Hockey Tournament cancelled

The 2021 Yukon Native Hockey Tournament, scheduled for March 25 to 28… Continue reading

Lev Dolgachov/123rf
The Yukon’s Information and Privacy Commissioner stressed the need to safeguard personal information while shopping this holiday season in a press release on Nov. 24.
Information and Privacy Commissioner issues reminder about shopping

The Yukon’s Information and Privacy Commissioner Diane McLeod-McKay stressed the need to… Continue reading

Keith Lay speaks at a city council meeting on Dec. 4, 2017. Lay provided the lone submission to council on the city’s proposed $33 million capital spending plan for 2021 on Nov. 23, taking issue with a number of projects outlined. (Crystal Schick/Yukon News file)
Resident raises issues with city’s capital budget

Council to vote on budget in December

Beatrice Lorne was always remembered by gold rush veterans as the ‘Klondike Nightingale’. (Yukon Archives/Maggies Museum Collection)
History Hunter: Beatrice Lorne — The ‘Klondike Nightingale’

In June of 1929, 11 years after the end of the First… Continue reading

Samson Hartland is the executive director of the Yukon Chamber of Mines. The Yukon Chamber of Mines elected a new board of directors during its annual general meeting held virtually on Nov. 17. (Joel Krahn/Yukon News file)
Yukon Chamber of Mines elects new board

The Yukon Chamber of Mines elected a new board of directors during… Continue reading

The Yukon Hospital Corporation has released its annual report for 2019-20, and — unsurprisingly — hospital visitations were down. (Crystal Schick/Yukon News file)
Annual report says COVID-19 had a large impact visitation numbers at Whitehorse General

The Yukon Hospital Corporation has released its annual report for 2019-20, and… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Most Read