The member nations of the Kaska Dena Council are challenging a major mining project in southeast Yukon at the Supreme Court of Yukon between Sept. 13 and 14, seeking to determine if there was proper consultation.
On June 15, 2022, the governments of Yukon and Canada approved the Kudz Ze Kayah project to enter the regulatory phase. However, a court order on Jan. 2 this year mandated further consultation with Kaska Nation, prompting a reassessment of the decision.
The Ross River Dena Council and Liard First Nation submitted a letter to Crown decision-makers on June 14, 2022. The letter, sent a day before the approval decision, addressed potential impacts on water quality and caribou habitats.
Chief Justice Suzanne Duncan of the Yukon Supreme Court ruled the Crown’s decision-making bodies did not fulfill their obligation to adequately consult with First Nations during one part of the initial consultation process.
The Yukon Environmental and Socio-economic Assessment Board (YESAB) re-approved the project with specific terms and conditions on March 8. However, Mark Youden, the lawyer representing Kaska Nation, argued YESAB continued to inadequately consult his client before making this decision during the Sept. 13 and 14 appeal hearing.
Youden criticized Duncan’s previous ruling for failing to consider the economic feasibility aspects of the mining project consultation. Duncan concluded the economic feasibility was outside the scope of the Yukon Environmental and Socio-economic Assessment Act. However, Youden argued these factors contribute to a socio-economic effect.
Youden said the consultation with First Nations was inadequate regarding the project’s economic feasibility. This aspect affects First Nation communities in the project’s area, which would potentially benefit from employment and economic opportunities throughout the project’s 38-year life-cycle.
Duncan found the Kaska Nation did not fulfill its reciprocal obligations, which led to frustrations in the consultation process due to delayed communication. Youden argued this view overlooks the First Nation’s capacity issues, unfairly portraying Kaska Nation as difficult.
Youden went on to argue Duncan’s ruling on the June 14 letter imposed too many restrictions, limiting the Crown’s ability to fulfill its consultation obligations.
Chief Stephen Charlie of the Liard First Nation delivered a speech outside the courthouse during the appeal hearing. He emphasized the importance of self-determination in making decisions about their land. While criticizing the federal and territorial governments, he also expressed a desire to collaborate with them to protect the Kaska’s cultural identity and role as environmental stewards.
“Why should Whitehorse or Ottawa rule our land when they don't even know where it is? When I come up here and I speak, I speak from a people that are so strong. There's nothing wrong with signing a land agreement, but we will not sign anything that cedes and surrenders our territory. We want to work with Canada, within Canada, to have a government for us that makes decisions alongside of you, most of you in this audience here,” Charlie said.
Lawyers for the Canadian government, the Yukon government and BMC Minerals, the mining project’s operator, made individual arguments that the Kaska Nation are pursuing outcomes beyond the consultation’s intended scope.
Marlaine Anderson-Lindsay, the lawyer for Canada’s attorney general, argued the Crown’s decision-making bodies examined the project’s economic feasibility and addressed potential financial concerns during initial consultation phases.
Roy Millen, BMC Mineral’s lawyer, said Kaska Nation’s absence of an Aboriginal title precluded them from ultimately having the right to approve or reject projects on their own traditional territories. He said the consultation aims to address Aboriginal rights but economic feasibility was not a factor in this.
I.H. Fraser, the lawyer representing the Yukon government, focused his argument on the project’s mitigation costs which in his estimation may prove to be a financial burden to the project’s operator.
The three-judge panel heard all arguments during the appeal hearing and have reserved their judgment for a later date for the decision to be delivered.
Contact Jake Howarth at jake.howarth@yukon-news.com
