A dispute between a northern Yukon First Nation and the territorial government over approval of mining exploration will proceed.
Chief Justice Suzanne Duncan of the Yukon Supreme Court denied an application from the Yukon government to strike a petition from the First Nation of Nation of Na-Cho Nyak Dun (FNNND) on Aug. 25.
The petition is seeking judicial review of the government’s approval of a mining exploration project in the First Nation’s traditional territory.
The work in question was proposed exploration in the Tsé Tagé (Beaver River) watershed by Vancouver-based Metallic Minerals Corp. The project was recommended for approval by the Yukon Environmental and Socio-economic Assessment Board (YESAB) and then given the green light with some further conditions by the government in February.
The plan approved by the government allowed exploration and related activities for the next 10 summers.
The First Nation commenced legal action shortly after the plan was approved.
The lawsuit alleged that the Yukon government’s decision breaches duties flowing from the honour of the Crown, the final agreement signed between the First Nation and the government as well as an intergovernmental agreement. It also alleges breaches of good faith.
The Yukon government applied to strike FNNND’s petition, arguing that some of the allegations are without merit, improperly pleaded or otherwise inappropriate to be heard by the court.
One of the issues in the lawsuit is the agreement between FNNND and the Yukon government to begin land use planning for the watershed where the project was proposed.
According to Duncan’s judgement, the agreement to work on the land use plan was signed in January 2018; the documents say its completion is expected within the next 12 to 24 months.
The judgement says the goals of the agreement included promoting collaboration between the territorial government and the First Nation in the management of land, water and resources. It also says a goal of the Beaver River Land Use Plan would be promoting development that does not undermine the ecological and social systems Na-Cho Nyak Dun citizens depend on.
The fact that the claims Metallic Minerals’ project focuses on were not staked until 2018 and 2019 after the land use planning agreement was signed is noted in the judgement.
Evaluating each portion of FNNND’s petition that the Yukon government wanted struck independently, the judge did not find that any of them should be struck.
“FNNND’s allegations in the petition that are challenged by the Yukon government are all available at law and are supported by the material facts pleaded,” the judgement reads.
“While some of the Yukon government’s arguments raised here may be relevant on the merits of the hearing of the petition, they are not persuasive for the purpose of meeting the legal tests on an application to strike. The application is dismissed.”
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