'Failure of reconciliation': First Nations slam Yukon gov't for taking assessment board to court

Two Yukon First Nations slammed the territorial government in court Thursday for taking legal action after an assessment office recommended against a mineral exploration project in the Peel watershed.

Lawyers representing Tr'ondëk Hwëch'in (TH) and the First Nation of Na-Cho Nyäk Dun (FNNND) asked a Yukon Supreme Court judge Thursday to toss the case, arguing it was baseless. 

"Why are we here?" TH lawyer Micah Clark asked. 

FNNND lawyer Tasha Paramalingam, meanwhile, said the government taking the issue to court instead of consulting with First Nations was a "failure of reconciliation."

Clark and Paramalingam's submissions came on the second of a three-day hearing of a legal petition filed by the territorial government last year against the Yukon Environmental and Socio-economic Assessment Board (YESAB). 

The government filed the petition after the board's Dawson-area designated office recommended against an exploration project in the southern edge of the Peel watershed. 

Company Silver47 had proposed to do five years of work in the Michelle Creek area, near the northern tip of Tombstone Territorial Park. The office, in its recommendation, cited adverse effects to wildlife and First Nations wellness that could not be mitigated. It also noted the proposal did not conform with the Peel Watershed Regional Land Use Plan because the company did not provide baseline data on wildlife.  

The Yukon government and Silver47, earlier in the hearing, argued the recommendation was "unreasonable" and said they want the assessment be redone. 

Paramalingam argued that the Yukon didn't have standing to take legal action at all since the recommendation was non-binding and the government remained a decision-maker on whether the project would proceed. 

She also argued the Yukon could have rectified any issues outside of court, including by consulting with First Nations on next steps. Both FNNND and TH, she noted, repeatedly asked for that after the office issued its recommendation, but, without ever speaking to either, the government filed the petition on May 29, 2023 — the 30th anniversary of the signing of FNNND's Final Agreement. 

The government's "impoverished approach" to the Peel plan, she argued, required redress and rebuke from the court. She urged the court to send the message to the Crown that "the path to reconciliation lies in boardrooms, not courtrooms" and find the Yukon's petition an abuse of process.

'Enormously disappointing'

Clark and FNNND's other lawyer Nuri Frame, meanwhile, defended the recommendation and said it should remain untouched, describing it as a comprehensive, "impressive" document that applied the Peel plan as intended and made sense when read as a whole.

Frame accused the government of purposely trying to make the recommendation report seem illogical. The Yukon, for example, pointed to the report stating baseline data should be collected on wildlife well before activity commenced while vegetation could be surveyed just prior to clearing as part of the document's "incoherence." 

Frame, however, said there was a simple explanation for the difference — a plant, unlike a caribou or sheep, "won't hear people coming and run off with its flower friends."

Clark and Frame also took issue with several of the Yukon's and Silver47's arguments, including that it was unfair the office never told the company baseline data was crucial to its proposal.

Clark argued the YESAB office wasn't obligated to state a "matter that is obvious," pointing to the six information requests the office issued to Silver47 asking for baseline data and the company repeated response that it would collect that data during exploration. 

Frame said it would be clear to any reasonable person that there would be consequences for repeatedly saying "no" to requests for important information. He also accused Silver47 of trying to downplay what "exploration" entailed when saying it could collect data then instead.

"We're not talking about a guy with a rock hammer," Frame said, noting that exploration involved heavy disturbances like digging trenches and flying helicopters overhead.

Silver47 also claimed that the Peel plan only required baseline data to be collected prior to development, not exploration, relying on definitions of the terms in the territory's Quartz Mining Act. Frame, however, argued that since the Peel plan stemmed from treaty promises, it needed to be viewed through a wider constitutional lens —  Chapter 12 of the final agreements, he noted, cover "development," with the term clearly not just referring to active mining.

Frame added that "prior to development" could mean any period before development starts, not just the time immediately preceding it. 

"If I tell the court I want to go to Japan before I die, it doesn't mean I want to go to Japan on my deathbed," he said.

Both Frame and Clark pointed out that along with the First Nations, the Yukon government's own environment department submitted comments during the project assessment expressing concern about the lack of baseline data — both as a requirement of the Peel plan, and because it was needed to assess the project's potential impacts. 

They also rejected the idea that the office could only consider the Peel plan in terms of bringing a non-compliant proposal into compliance, and could not consider it as a factor in recommending against a project.

While Yukon First Nations' final agreements state that an assessment office should request a "Regional Land Use Planning Commission" to assess a project's conformity with a land use plan, Frame pointed out that such a commission doesn't exist for the Peel.  

Clark added that it was "difficult" to hear the Yukon government claim to not understand portions of the recommendation report focused on First Nations — including the link between wildlife and First Nation wellness — when it could have asked the First Nations directly. 

Frame, meanwhile, said it was "enormously disappointing" for FNNND "to be in court yet again across from its treaty partner, [the] Yukon government." 

The case is expected to conclude Friday following submissions from the Attorney General of Canada and YESAB, and reply comments from the Yukon government.