The Ross River Dena Council (RRDC) has filed an application in federal court to quash the approval of the Kudz Ze Kayah mine project.
The mine was greenlighted by the Yukon and federal governments on June 15 after a long and controversial assessment phase. Now the case will go before a judge to review the decision of the two governments.
The project is located 260 kilometres northwest of Watson Lake and 115 kilometres south of Ross River. It is 25 kilometres west of Wolverine Mine and 24 kilometres south of Finlayson Lake. The mine site is situated in the middle of core habitat range for caribou that are listed as “species of concern” in the Species at Risk Act.
The application to the court says there was a failure to reasonably consult and conduct fair process respecting Indigenous rights.
The project, initiated by BMC Minerals in 2017, was recommended for initial approval in 2020 by the executive committee of the Yukon Environmental and Socio-economic Assessment Board (YESAB). The federal government found shortfalls and sent it back for further review. That review prompted an unusual tie vote from the YESAB executive committee in March 2021.
Two members of the committee believed that the project’s adverse impacts could not be mitigated and the project should be rejected outright; the other two thought terms and conditions would be enough.
READ MORE: YESAB deadlocked in tie vote over Kudz Ze Kayah mine project
Unable to agree, the project defaulted to YESAB’s previous decision and was approved.
The Yukon and Canadian governments received the YESAB decision and modified it to include some additional terms and conditions in relation to the First Nations’ concerns.
The First Nation says this decision was remade “without consultation with Kaska.”
The court document describes how the Kaska chiefs wrote a joint letter asking that the project be rejected in April 2021. Canada and the Yukon did not respond to the letter. In January 2022, the chiefs were informed that there was only potential for discussion regarding the terms and conditions of the approval.
RRDC’s lawyers argue that consultations were framed and limited to exclude fair consideration of all options. Information which might inform decision-making about cumulative industrial effects was not offered. Questions about the economic viability of the project were not answered. Any consideration about whether or not the recommended mitigations would actually work was pushed into the future.
The case alleges that officials from Yukon and Canada refused to contemplate anything pertaining to rejection of the project and that the modified terms and conditions were developed by the two decision bodies “behind closed doors, without any involvement, engagement or consultation with Kaska.”
READ MORE: Territorial and federal governments at odds over Kudz Ze Kayah mine project
In March 2022, another letter was sent from the chiefs regarding the economic viability of the project, the consequences of another abandoned mine project on their traditional lands, and the contribution of the project to cumulative effects in the Kaska traditional territory.
None of this correspondence went through the YESAB process, so none of it is publicly available and could not be verified by the News.
Nevertheless, the court document states that decision bodies responded with a 40-page letter in April stating that the concerns and issues could be addressed by the modified terms and conditions, or through regulations. Then the two governments sent another letter May 25, stating their intention to issue a decision document on June 15.
A meeting of all parties was held on June 8 to discuss the imminent decision. Canada and the Yukon made assurances that the decision bodies would review and consider any comments, information or concerns provided prior to June 15, and prior to issuing a decision. RRDC and Liard First Nation (LFN) set to work to meet the pending deadline. On June 14 they submitted a 48-page report.
Less than 24 hours after receiving the two chief’s submission, the project’s approval was announced in two separate news releases, one from the federal government and the other from the Yukon premier’s office.
RRDC has brought this application forward for itself and on behalf of all members of the greater Kaska Nation which includes LFN, Dayla Dena Council, Dease River First Nation and the Kwadacha First Nation.
The traditional territory of the Kaska Nation covers over 24-million hectares and spans three jurisdictions, including 25 per cent of the Yukon, 10 per cent of British Columbia and a wide strip of Northwest Territories along the Yukon border.
Contact Lawrie Crawford at lawrie.crawford@yukon-news.com
Clarification: This story has been modified to clarify that some modifications were made by deciding bodies after the YESAB deadlock in March 2021.