The Yukon Court of Appeal has dismissed the Yukon government’s appeal of a lower court decision that found it did not adequately consult the First Nation of Na-Cho Nyäk Dun (FNNND) before approving a mining exploration project in the Beaver River Watershed.
Some parts of a Yukon Supreme Court decision from 2023 were set aside by the superior court, but the result remains the exploration project’s return to the government for further review.
The matter has been proceeding through the courts since 2021 when FNNND requested judicial review of the government’s approval of a project proposed by Metallic Metals Inc. in the watershed they call Tsé Tagé.
In early 2023, the Yukon Supreme Court reversed the approval of the project.
The Supreme Court ruling cited the government’s failure to adequately consult the First Nation and breaches of its treaty by the government including when it comes to promised land-use planning. A land-use plan is in progress for the watershed but has not been completed.
The territorial government promptly appealed the decision, sending the matter to the territory’s highest court. A three-judge Court of Appeal panel heard the case last November. All three justices concurred on the dismissal of the Yukon government’s appeal in a decision dated April 9.
The project has been remitted to the director of the Yukon government’s mineral resources branch for reconsideration. The Court of Appeal agreed with the Yukon Supreme Court’s conclusion that the Yukon government did not meet its consultation obligations.
The Court of Appeal found that two of three Yukon Supreme Court declarations, which dealt with treaty and constitutional breaches, did not meet the necessary criteria and were set aside.
FNNND hails the decision as a landmark victory in a press release dated April 9.
“We are very pleased by the Court of Appeal’s decision,” FNNND Chief Dawna Hope said, quoted in the release.
“We entered into our treaty with the hope and expectation that we would be partners with public government in deciding whether and how our traditional territory could be developed. Unfortunately, that core treaty promise of co-governance has never been lived up to by Yukon government.”
Hope goes on the state that FNNND territory has been “ground zero for mining” despite objections from the First Nation.
“The Court of Appeal, like the Yukon Supreme Court before it, heard our concerns that our treaty was not being respected, and made a decision that upheld the core promises of our treaty. We hope this decision sparks a wholesale shift in Yukon government’s approach to treaty implementation,” Hope said.
The matter also came up in the Yukon legislature on April 11.
John Streicker, the Minister of Energy, Mines and Resources, said land-use planning is now in the pre-planning stage for the whole region. He said the government and FNNND are in conversation about how planning for the Beaver River area will interact with regional land-use planning.
Yukon Party mines critic Scott Kent questioned Premier Ranj Pillai on the status of land use planning and the message the court’s rejection of the project sends to the mining industry and investors.
Pillai vigorously defended his government’s record on mining and the growth of the industry on the Yukon Liberal Party’s watch.
“Up until recently, the government had focused on the development of a sub-regional land-use plan for, specifically for, the Beaver River, but what the minister said today in question period was that they’re no longer pursuing that. They’re going to fold it into the larger regional land-use plan for Northern Tutchone,” said Yukon Party Leader Currie Dixon, speaking with reporters following the April 11 legislature session.
He said the change of focus came as news to him.
The territorial government’s website still has a page stating that completion of a draft Beaver River land-use plan was projected for December 2023. On the legislature floor, Streicker said this would be removed from the site.
“It’s clear that they’ve had issues with the way they’ve been proceeding with this plan, because the court case that was recently decided earlier this week is evidence of that,” Dixon said.
Questions sent to the Yukon government including about the status of land-use planning in the Beaver River watershed were not answered by the News’ deadline.
— With files from Dana Hatherly
Editor’s note: This article has been edited from its original form to reflect the reason the remittance of the decision to the mineral resources branch with greater accuracy.
Contact Jim Elliot at jim.elliot@yukon-news.com.