BMC Minerals’ Kudz ze Kayah mining project, a proposed $381-million dollar mine located 115 km south of the Ross River Dena Council in Ross River, Yukon. Photo: BMC
A Yukon judge says Canada and Yukon must go back to the negotiating table with the Kaska Nation over a proposed mine in the territory after concerns they weren’t properly consulted about the project.
In July 2022, the nation applied to the court for a judicial review of a decision that gave a green light for BMC Minerals to start its $381 million mine located 115 km south of the Ross River Dena Council (RRDC) in Ross River, Yukon.
The proposed mine would be in the heart of the Finlayson caribou herd’s winter range, which has raised concern amongst RRDC and members of the Kaska Nation.
According the to the Jan. 2 written decision, Yukon Supreme Court Chief Justice Suzanne Duncan found Natural Resources Canada, Fisheries and Oceans Canada and the territory adequately consulted with the Kaska leading up to issuing a decision on the project.
However, she ruled, that they failed to properly take a last-minute submission by the Kaska into consideration before issuing that decision.
On June 15, 2022, Canada and Yukon allowed the project to move to the regulatory phase – the final phase in the approval process where a project is either given a permit or rejected.
A judicial review is a process where people or organizations can ask the court to review any decisions of a government to ensure they are “legal” and “fair.” The case was heard in the Supreme Court of Yukon in April of 2023.
Duncan said in her decision the Crown had mostly acted reasonably when consulting with the Kaska, noting it “worked hard to engage the First Nations in the consultation process” and “listened carefully and demonstrated a good understanding of the issues and concerns raised by the First Nations.
“The Crown is not to be held to a standard of perfection in fulfilling its duty to consult and accommodate,” she said. “What is required is reasonableness. In this case, I have found the Crown acted reasonably in all respects but one.”
That issue, she said, centers around a comprehensive document put forward by RRDC and the Liard First Nation detailing their concerns about the project.
The document was submitted on June 14, 2022 – a day before Canada and Yukon released its decision.
The Kaska claim that while the governments assured them that their views would be fully considered before issuing a decision, the project was greenlighted to move to the next stage less than 24 hours later.
“Despite the late timing of this submission, it deserved a more substantive response through a dialogue, rather than through references in the Decision Document to issues that had been raised previously,” Duncan wrote.
“The basis for issuing the Decision Document the day after the receipt of the June 14, 2022 submission was not transparent, intelligible, or justified. It did not meet the honour of the Crown.”
Kaska and governments to meet
Duncan ruled the decision allowing the project to proceed to the next stage to be set aside to allow for a consultation meeting on the June 14 submission.
The meeting will take place in the next 60 days. The Crown will then be required to issue another decision on the mine no more than 30 days after the meeting.
RRDC Chief Dylan Loblaw said his First Nation is eager to receive the consultation it’s been fighting for.
“We’re encouraged of the outcome to the start of the new year,” he said. “We have our work cut out for us and we look forward to going back to that June 14, 2022 submission deadline.”
Loblaw told APTN in a prior interview the nation is hoping to see the project go through a new project assessment that will include what they say is meaningful consultation.
He said his people will continue to fight to protect future generations.
“Our goal is to preserve our identity and to protect what we have left.”
Yukon government spokesperson Diana Dryburgh said in a statement if the project does proceed to the regulatory phase it will continue to consult with the Kaska.
“More broadly, we will also continue to engage meaningfully with the Kaska throughout the lifetime of the project, in accordance with our commitment to reconciliation and to build strong relationships with First Nations governments,” she said.
