A judicial review launched by the Kaska Nation against the territorial and federal governments is now being heard in Yukon’s Supreme Court.
The lawsuit is centered on BMC Minerals’ Kudz ze Kayah project, a proposed $381-million dollar mine located 115 km south of the Ross River Dena Council (RRDC) in Ross River, Yukon.
The project 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.
On April 11 the nation’s lawyers argued the governments failed to properly consult with RRDC about advancing the project to the next stage in a decision made last summer.
RRDC Chief Dylan Loblaw told APTN News in an interview last year the nation is hoping to see the project go through a new project assessment that will include what they say is meaningful consultation.
While the Yukon Environmental and Socio-economic Assessment Board previously determined the project will result in “adverse effects” to the Finlayson caribou herd, water, resources, wildlife and traditional land use, it also found adverse effects could be eliminated, controlled or reduced through recommended mitigation efforts.
In January 2021 the federal decision bodies referred the project back to the board. After consulting with RRDC and Liard First Nation, they expressed concern the screening report issued by the board was insufficient regarding how potential impacts would be mitigated.
The June 2022 decision document said they “varied the recommendation(s) through new and varied terms and conditions, in addition to changes to recommended monitoring measures, to improve clarity in implementation.”
The new and improved recommendations include mitigation efforts to better protect issues raised by the Kaska, such as their concerns around water resources, wildlife, the Finlayson caribou herd and air quality.
In June of 2022 Fisheries and Oceans Canada, Natural Resources Canada and Yukon territorial government, which are decision bodies for the project, released a decision document advancing the project to the regulatory stage.
RRDC claims this was news to them.
They argue they were provided assurance their views would be fully considered.
On June 14, 2022, the day before a decision was issued, RRDC and the Liard First Nation (LFN) provided what they say is a comprehensive 48 page document detailing their concerns while also calling for the project to be delayed or rejected.
Despite this, a decision to move the project was made less than 24 hours later.
Loblaw said at the time the governments failed to fulfil their constitutional duties to meaningfully consult with the Kaska, resulting in RRDC launching a judicial review on behalf of the Kaska Nation.
Yukon government disputes the allegations it didn’t meaningfully consult with the Kaska.
A legal response filed in 2022 states the document provided by RRDC and LFN was a reiteration of known concerns.
It also argues the governments gave ample notice before issuing a decision.
The first day of the hearing opened with Loblaw and other members of the Kaska Nation drumming and singing in the Kaska language. Loblaw said a short prayer in Kaska in hopes of starting the court proceedings in a good way.
Arguments will be made on behalf of the Kaska Nation, the territorial government, the Attorney General of Canada and BMC Minerals.
The six-day hearing is expected to wrap up next week.
