A three-judge panel in Whitehorse presided over the Yukon government’s appeal of a decision earlier this year to reverse approval of mine exploration work on the traditional territory of the First Nation of Na-Cho Nyak Dun (FNNND). The appeal hearing, initially scheduled for two days, was concluded on a single day on Nov. 22.
The appeal stems from a Yukon Supreme Court decision issued by Chief Justice Suzanne Duncan in February that found the territorial government’s approval of mineral exploration work in the Beaver River watershed, known to the First Nation as Tsé Tagé, was given without adequately consulting FNNND.
The company that was supposed to complete the exploration work was Vancouver-headquartered Metallic Minerals Inc. It was approved to undertake exploration and related activities over the course of 10 summers.
Duncan’s decision also found that the government’s approval of exploration by Metallic Minerals did not conform to the First Nation’s treaty, particularly the chapter regarding land use planning.
FNNND brought forward the lawsuit that resulted in the earlier court decision. The Yukon government’s appeal, filed in March of this year, aims to have Duncan’s previous judgement and declarations set aside.
During the hearing, Yukon government lawyers argued before a packed courtroom that Duncan’s judgement was flawed in several ways, including in its finding that the government’s duty to consult was at “the higher end of the spectrum” and in identifying the “nature, scope and effect” of FNNND’s Chapter 11 treaty rights, which govern land use planning.
I.H. Fraser, one of the lawyers for the territorial government, argued that Duncan’s conclusion on consultation was erroneous and that its rationale was not supported by law. In written arguments submitted to the court, the government asserts that “there is no rigid test to determine the depth of consultation required for impacts to treaty rights.”
Fraser challenged Duncan’s characterization that the mineral exploration project would be “industrialized.” He then discussed the extent of site reclamation work that would take place following the project.
One of the judges said he did not find Duncan’s characterization inaccurate and questioned whether reclamation work would return the impacted area to its original state. Fraser pushed back, stating that if the standard for reclamation work is to return sites to the exact state they were in prior to work, no project would ever get past muster.
“Will it look exactly the same as before the activity took place? Of course not. If you cut down a tree, it’s gone,” Fraser said in court. He added that remediation of the project site will not impact land-use planning rights.
On the topic of non-conforming uses with regard to land-use planning, Fraser said that non-conforming uses are unknown until a land-use plan is in place. He argued that until a plan exists, project consultations should continue as normal.
Upon the conclusion of Fraser’s presentation to the court, one of the judges on the panel called his argument “very clinical.”
In a court filing responding to the Yukon government’s appeal of Duncan’s judgement, FNNND maintains that Duncan was correct in finding that the government “breached its duty to act in a way that accomplishes the intent and purposes” of the treaty and that the government failed to consult and accommodate.
In the filing, FNNND asked that the appeal be “dismissed with costs.”
A lawyer for the First Nation submitted to the court that FNNND wants to be cautious about land use — particularly industrial land use — in the absence of a land-use plan. The lawyer added that it is the First Nation’s position that no projects should go forward until a land-use plan is agreed upon.
It was also stated in court that allowing 10 summers’ worth of industrial activity on land in the Beaver River watershed fundamentally alters land-use planners’ ability to do their jobs.
Furthermore, one of FNNND’s legal representatives argued that the First Nation’s issue with the project is less about environmental concerns and more focused on treaty rights, land co-management and lacklustre consultation.
During the hearing, it was speculated that a land-use plan for the Beaver River watershed could be completed sometime next year.
The appeal hearing was attended by FNNND Elders, citizens, allies and representatives from other Yukon First Nations. Before the hearing, a small group of demonstrators gathered outside the territorial courthouse, holding signs that urged the protection of the Beaver River watershed.
Following the conclusion of the hearing, FNNND issued a press release criticizing the Yukon government’s decision to appeal Duncan’s judgement.
“It was disheartening that Yukon government brought this appeal at all,” FNNND Chief Dawna Hope said in the press release.
“Chief Justice Duncan’s decision provided a clear path forward that we were hoping Yukon government would walk with us willingly. Instead, we found ourselves in court again to defend our lands and our rights. But we thank the Court of Appeal for considering our submissions and we look ahead to the day that we can finally implement key promises in our treaty.”
Judgement on the appeal has been reserved for a later date.
— With files from Jim Elliot
Contact Matthew Bossons at matthew.bossons@yukon-news.com