This week, the Ross River Dena Council (RRDC), on behalf of the Kaska Nation, were back in court with Yukon Government and mining company BMC minerals over the proposed Kudz Ze Kayah mine. On the surface, RRDC’s appeal is about whether adequate consultation took place during the Yukon Environmental and Socio-economic Assessment Board (YESAB) process. Given the Kaska have clearly said they do not want BMC’s proposed mine on their territory — not at this time and not without meeting all of their conditions — we doubt the quality or quantity of consultation is really the issue. We see this instead as an issue of consent.
Consent requires the ability to say no. As women, we deeply understand this. As longtime Yukoners with 35 years combined experience as environmental professionals, and settlers, we also understand that we have responsibilities to the Indigenous Nations on whose lands we live. This includes affirming their right to free, prior and informed consent for any development on those lands.
Yukon Government (YG) has these responsibilities too. They claim to be committed to reconciliation — it’s time for that talk to be backed up with action.
Among their stated concerns, the Kaska oppose BMC’s mine because of the threat posed to the Tu Cho/Finlayson caribou herd. The Kaska are intimately connected to caribou — their laws recognize caribou as relations (not resources) and as important participants in Kaska society, with their own rights that are deserving of respect. Indigenous and Western scientific knowledge agree the proposed location is in critical caribou habitat. The proposed name, Kudz Ze Kayah, actually means “caribou country” in Kaska. Although a 2022 study by YG and BMC showed the herd has grown in recent years, that growth —unexplained by YG — has come after nearly 20 years of decline. This herd is part of a population already listed 'Special Concern' under the Species at Risk Act.
The proposed mine puts both caribou and culture at risk. RRDC Chief Dylan Loblaw told APTN News in March, “The mine is simply in the wrong place. We feel that a mine of that size and magnitude, in a core caribou refuge, shouldn’t be designed and built at this time." He added "The project has been varied, but the modifications aren’t adequate enough to fit our terms and conditions set up by our nation, specifically our Elders.”
To us, this sounds like a clear "no." Both YG and BMC refused to take no for an answer.
Yukon Government has no formal process to determine Indigenous consent in the Yukon. The YESAB process is the closest thing we have. YESAB lays out processes for "consideration" and "consultation" — neither of which meet the standard of consent.
In addition, YESAB assessments often seem more concerned with how, not if, a project should go ahead. For example, RRDC's original lawsuit in 2022 (responding to the approval of BMC’s proposed Kudz Ze Kayah Mine) stated "The decision bodies would only engage in consultation with Kaska based on the premise that the project would be approved." That same year, over 99% of projects before YESAB were approved. Elsewhere in Canada, the environmental assessment has been called an ‘approval machine.' It seems the same could be said in the Yukon.
It's worth noting here both RRDC and Liard First Nation (LFN) have refused to sign on to the Umbrella Final Agreement (UFA), the agreement that guides how co-governance is supposed to work elsewhere in the territory and the agreement that established YESAB. That means the YESAB process is itself forced on Kaska Nations without their consent, and LFN's and RRDC's choice to participate in the YESAB process indicates either good faith, or a lack of alternatives. Maybe both.
Consent is not just relevant at the outset; it also means being able to say "no" further down the line. Things can change. The First Nation of Na-Cho Nyäk Dun has called for a halt to mining in their territory after a catastrophic heap leach failure at the Eagle Gold Mine this summer. YG has not complied. The premier has reassured Yukoners and FNNND that there are already processes in place (like assessment) to ensure mining activities “consider” Aboriginal and treaty rights. Again, neither "consideration" nor "consultation" meet the standard for consent.
Yukon Government and many non-Indigenous Yukoners claim to be committed to reconciliation with Indigenous peoples. At the very basic level that has to include respecting their rights as Nations, including to free, prior and informed consent to developments within their territories. By not accepting the Kaska's "no," either we aren't respecting that right, or we don't see the Kaska as a Nation with that right. We don't particularly like either option. No means no, Yukon. Let’s do better.
Krystal Isbister, Watson Lake, Traditional Territory of the Liard First Nation
Kim Melton, Dawson City, Traditional Territory of the Tr'ondëk Hwëch'in
