The Yukon Supreme Court found a flaw with the government’s consultation with the Kaska on a mine project that has been going through the regulatory and court process for years. The decision was released on Jan. 2
The court ruled on the adequacy of the consultation conducted with the Kaska nation on the proposed Kudz Ze Kayah mine. The key issue before the court was whether the Crown, through the government decision bodies tasked with approving or halting the mine project, met its duty to consult with the First Nations. The Supreme Court’s chief justice, Suzanne Duncan, ruled that one portion of the consultation was unreasonable and ordered further consultation.
The mine in question is planned for a location about 260 kilometres northwest of Watson Lake. It is being proposed by BMC Minerals with copper, lead and zinc as the targets for extraction.
The mine borrows a Kaska name for the land it plans to use, meaning “caribou country.” The possible effects on the Finlayson Caribou herd are a major part of the Kaska’s opposition to the mine project as proposed. The lands the mine plans to occupy are important rutting and calving ground for the Finlayson Caribou herd. These caribou are part of the northern mountain population of woodland caribou that is listed as a Species of Special concern under the Species at Risk Act. The area has been referred to as a “breadbasket” for caribou and people alike.
It was initially recommended that the mine proceed in 2020. There was disagreement from the federal government and the matter was sent back to the Yukon Environmental and Socioeconomic Assessment Board (YESAB). YESAB’s reconsideration continued into 2022. A decision document was issued in June of that year only a day after a major submission from Liard First Nation and the Ross River Dena Council had been received. In the court’s decision, the judge writes that the June 14, 2022 submission included a detailed response to proposed conditions relating to possible impacts on water quality and the caribou in the area.
On June 20, Ross River Dena Council Chief Dylan Loblaw issued a news release, calling the decision a “blatant disregard for our inherent Aboriginal title, rights and interests.” Ross River filed the legal challenge on behalf of the rest of the Kaska nation soon after. The Yukon government, the Attorney General of Canada and BMC were named as respondents on the suit.
The court found that the Crown demonstrated patience and persistence in its consultation and only failed by not considering the June 14 submission.
“The failure of the decision bodies to respond directly to Kaska about this document before issuing the decision document was not reasonable in all of the circumstances. The remedy is to refer the decision to the decision bodies for consultation on the June 14, 2022 submission,” the decision reads.
“Deep consultation requires more than identifying and understanding the issues raised. It requires dialogue, including discussions of whether the concerns change elements of the proposed decision, and if not, explanations of why not. This did not occur.”
The judge writes that the project has high stakes both in terms of its large investment and return, and the potential for it to create adverse effects in the Kaska traditional territory.
“Deep consultation with the First Nation is necessary. Accommodation requires a balancing of the competing societal interests – in this case the economic benefits of an operating mine – with Aboriginal and treaty rights. The purpose of consultation and accommodation done reasonably is to achieve compromises of conflicting interests that move the parties further along the path of reconciliation.”
The court found that the decision bodies worked hard on consultation, listening carefully and demonstrating good understanding of the issues and concerns raised by the First Nations. The decision detailed what the judge calls “many good faith but unsuccessful attempts to meet with the First Nations and get feedback.”
The Judge ruled that the Crown’s failure to consult about the information in this letter was not reasonable and that it was not justified in issuing the decision document the day after the June 14, 2022 submission came in. Because of this, the court’s decision set aside the decision document for the limited purpose of allowing consultation based on the June 14, 2022 letter.
The remedy ordered by the court states that a consultation meeting on the contents of the letter is to be held with no further submissions or documents exchanged except for an agenda agreed to in advance of the meeting. The judge writes that it may be helpful to select a neutral third party to chair the meeting. The decision document is to be issued 30 days after the final day of the consultation meeting with no further deadline extensions.
-With files from Lawrie Crawford
Contact Jim Elliot at jim.elliot@yukon-news.com