Court hears Yukon government appeal over quashing of exploration project in Beaver River watershed

The Yukon government was in court Wednesday arguing that a legal victory for the First Nation of Na-Cho Nyäk Dun — the quashing of a mineral exploration project in the Beaver River watershed — should be overturned. 

Appearing before a panel of appeal judges, government lawyer I.H. Fraser said the original court decision misconstrued what consultation is and the rights at stake. He reiterated the argument that the Yukon adequately consulted the First Nation of Na-Cho Nyäk Dun (FNNND) before green-lighting the project.

FNNND's lawyer Nuri Frame strongly disagreed.  

Dozens of people packed the courtroom gallery for the hearing, including a number of Na-Cho Nyäk Dun citizens who made the more than four-hour drive from Mayo to Whitehorse to attend. 

The legal battle was triggered by a proposed project from Metallic Minerals Corp., which wants to do a decade of exploration work on 52 claims located roughly 100 kilometres north of Mayo, on FNNND traditional territory. 

The First Nation is opposed to the project proceeding before a land use plan is in place for the Beaver River watershed, work on which is still underway. 

FNNND took the Yukon government to court in 2021 after it approved the project, which had already gone through an environmental assessment, to move into the regulatory and licensing phase. 

A Yukon Supreme Court judge ruled this year that the government did not adequately consult FNNND on the project, quashing the approval and sending it back to the consultation stage. 

The government appealed.

'It's not a negotiation process'

FNNND's final agreement, signed 30 years ago, played a central role in both the original case and the appeal — in particular, Chapter 11, which covers land use planning. 

Fraser argued the chapter doesn't establish the right to a land use plan, but a right to negotiate toward one — a right, he claimed, that wasn't infringed by approving Metallic Minerals' project. The chapter also doesn't prohibit development prior to a plan being put in place.

Metallic Minerals would be required to fully remediate the site at the end of the project, Fraser noted. While he acknowledged a remediated site still wouldn't look "exactly the same" as before, he said the real test was whether the difference between a fully reclaimed and original site was "material" enough to affect the creation of a land use plan. 

He argued that in Metallic Minerals' case, it wasn't.

Fraser also argued the original judge evaluated the Yukon government's consultation efforts when she should have evaluated whether the government reasonably believed the consultation was adequate. 

There was a point in the consultation where it became clear that FNNND would not support the project going forward, Fraser said, and there was "nothing more to be said" after that.

"It's not a negotiation process," he said, adding that consultation doesn't require parties to come to an agreement or for the Crown to give up its position. 

Consultation not just chance to 'blow off steam,' First Nation says

Frame, meanwhile, argued there was a "fundamental difference" in how the Yukon government and First Nations view treaties. The Yukon sees them like a divorce, where the parties divide up assets and never have to speak again, he said, while First Nations see them like a marriage, where the parties have to work together to create a long-lasting relationship.

The Yukon, Frame argued, was showing a "real absence of commitment" to that relationship. 

Frame described consultation as more than an opportunity for a First Nation to "blow off steam," and said the Yukon government failed to be proactive in the process. For example, he said, the government was puzzled when FNNND said it wanted to discuss its broader rights, but rather than trying to understand why, it just ended consultation. 

He argued it was reasonable for FNNND to raise land use planning when discussing the Metallic Minerals project as it was relevant context.

Frame also argued that allowing projects in areas subject to the land use planning "undermines" the ability of planners to decide how the land is used. 

For example, planners may want to recognize a certain area as undisturbed by development, but allowing an exploration project to take place before the plan's complete takes that option away. 

"Land that is pristine is only pristine once," Frame said, and asked that the original court decision be allowed to stand.  

Champagne and Aishihik First Nations (CAFN) intervened in the case. Lawyer Kate Blomfield said that the First Nation had a "direct interest" in the case as its final agreement parallels that of FNNND's, and CAFN also does not have land use plans in place. 

Blomsfield urged the appeal court to consider three key points — the Indigenous perspective on treaties, the need for timely action towards implementing treaties, and cumulative impacts to treaty rights. 

The longer the wait for a land use plan, the more impact there is on the land and land rights, Blomfield said. 

Fraser, in his reply, said that the question before the court in the original case wasn't if the land use planning process had taken too long, but if, when approving the Metallic Minerals project, there was something the Yukon should have taken into account but didn't. 

He acknowledged FNNND's "dissatisfaction" with how long its taken to negotiate a land use plan, but said that "bled over" into the project approval process. 

The appeal judges reserved their decision. 

Land needs to be kept intact, chief says

The Yukon government declined to make anyone available to comment on the case.

In an interview Thursday, FNNND Chief Dawna Hope, who was in court for the appeal, said it was disappointing the Yukon filed it in the first place. However, she said she felt "confident" the judges heard what her First Nation had to say and was pleased by citizens' presence in court. 

"It was great having everybody with us in a united front," she said, adding that the case was "deeply important" to FNNND because it concerned a "vital part" of its traditional territory. 

"We need the lands intact to be able to continue on with our culture, our heritage."

Hope said she considers herself a "land claims baby," and in court, held a copy of the FNNND final agreement in court, ensuring the cover faced the judges. 

"Those final agreements were a negotiated agreement — they're not just the First Nations agreements, those are Yukoners' agreements on a whole," she said.

"They were approved and signed by both of our governments and that is the Bible that I do business on every day, upholding those rights, making sure that those agreements are in play and implemented."