Government still deciding if it will appeal court’s decision to stop mining

The Yukon government will decide in the next few weeks if it will appeal the Supreme Court of Yukon's recent decision to forbid an exploration company from doing further work in White River First Nation's traditional territor

The Yukon government will decide in the next few weeks if it will appeal the Supreme Court of Yukon’s recent decision to forbid an exploration company from doing further work in White River First Nation’s traditional territory near Beaver Creek.

Last week, Justice Ron Veale quashed the government’s decision to give Tarsis Resources Ltd. a five-year Class 3 licence in September 2012. It allowed the company to use excavators and drilling rigs on the 1,280-hectare property. It’s looking for gold, copper and silver. The licence would allow up to 10 helicopter flights a day into the area that doesn’t have road access.

The Yukon Environmental and Socio-economic Assessment Board had recommended against the licence because it would harm the endangered Chisana caribou herd and the First Nation’s traditional way of life. These impacts could not be reduced, YESAB’s recommendation said. But the government granted the licence anyway. The First Nation sought a judicial review.

The government did not properly consult with the First Nation, Veale’s decision says.

He ordered the government to do “deep consultation” with the First Nation before deciding to grant Tarsis the licence. The law gives the government 37 days for consultation.

The government can also file an appeal within 30 days. It will decide if it will appeal before consultation begins, said Thomas Ullyett, assistant deputy minister of justice. Veale made his decision on July 5. The timeframe for consultation began on July 6.

“The time is ticking every day. And we realize that doing the kind of consultation that is recommended by the court would be challenging to do within 37 days,” said Ullyett.

That’s not the only challenge.

Deep consultation is not clearly defined, said Ullyett. The idea comes from case law.

“The duty to consult with First Nations is a complex area of the law,” said Ullyett. “It is inevitable that from time to time there will be genuine and principled disagreements about when that duty arises, or the extent of that duty.”

Consultation happens on a spectrum, Veale wrote in his decision. It ranges from notifying a First Nation about a project, to allowing them to submit input on it, to deep consultation.

Deep consultation is supposed to lead to changes. But case law doesn’t clearly define what that means either.

Veale’s decision does clearly show the government needs to respect the First Nation and YESAB, said Robert Freedman, the First Nation’s lawyer.

“The (YESAB) board is set up to allow comments from the government, First Nations, industry and the public,” he said. “When the board actually carries out its work and in the rare case like this, when they recommend “No,” you actually have to respect the body that the government set up.”

White River First Nation has no signed land agreement and only a couple hundred members. But it was highly involved in the review process, said Freedman.

“I work with a lot of First Nations, and I’ve rarely seen one of any size engage so deeply in the government process,” he said.

Veale’s decision also highlights how uncertain mining in the Yukon is, said Michael Kokiw, executive director of the Yukon Chamber of Mines. Tarsis is a chamber member.

“We need to work together as a jurisdiction to make sure that the certainty and understanding of what consultation is and the certainty of the process is there, so we can continue to have benefits, not just for ourselves, but for all First Nations and levels of government,” said Kokiw.

It’s standard business practice for companies working in Yukon to consult with First Nations, he said.

And Tarsis has done that, said Marc Blythe, the company’s president and CEO.

The company’s “not terribly unhappy” with Veale’s decision, said Blythe. The lawsuit was between the government and the First Nation. Tarsis only became involved when the First Nation claimed in court filings that it had tried to “bully” its way through the permitting process, he said.

The company “made significant efforts” to inform the First Nation of its earlier activities, even though that was not legally required, Veale wrote in his decision. The company even hired members of several First Nations, including White River, for the project, said Blythe.

The project is still in its early stages. “We haven’t had what you would call a big discovery there yet,” said Blythe. Exploration rarely leads to mines, he said.

Fewer than 10 people worked on the site last year, but nothing’s happening this season, said Blythe. The company didn’t want to start work until this case was decided, he said. It’s still waiting.

Tarsis had a “terrible” relationship with the First Nation, said Freedman. The First Nation had to pay for a consultant to review environmental studies, he said.

The company and the First Nation disagreed about what studies should be done and who should pay. Veale mentioned the disputes in his decision, but he noted the case is about the government’s duty to consult.

Freedman hopes Premier Darrell Pasloski will meet with the First Nation to discuss concerns the First Nation has with mining in the territory, he said.

“The last place anyone ever wants to end up is in court. If you’ve had to go to court, there’s already a bigger problem. And the place to resolve these issues is through negotiation and give-and-take.”

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