Court hands partial victory to First Nations who say they weren't properly consulted over Yukon mine project

A Yukon judge has handed a partial victory to First Nations who said they weren't adequately consulted over a proposed mine project in Kaska territory in southeast Yukon.

But the court also found that the federal and territorial governments largely met their duty to consult throughout the environmental assessment process. 

In a ruling this week, Yukon Supreme Court Chief Justice Suzanne Duncan found that the Crown "worked hard to engage First Nations in the consultation process" before approving the Kudz Ze Kayah mine in southeast Yukon, while the First Nations often worked to "frustrate and unjustifiably prolong" the consultation process.

At the same time, Duncan found that the Crown failed to give proper attention to a final written submission from the First Nations, and she's ordered the government's approval of the mine be set aside until a final consultation meeting can happen this winter.  

The court's decision follows a six-day hearing last spring. The Ross River Dena Council filed a court petition on behalf of Kaska Nation in 2022 seeking a judicial review of how the decision bodies — Natural Resources Canada, Fisheries and Oceans Canada and the territorial executive council office — signed off on the Kudz Ze Kayah mine project after an environmental and socio-economic assessment, allowing it to move to the regulatory phase.

The First Nation argued that the consultation process for the proposed mine in southeast Yukon was unfair and inadequate, as the Crown allegedly listened to Kaska concerns but failed to meaningfully address and incorporate them.

The Kudz Ze Kayah project is about 260 kilometres northwest of Watson Lake, Yukon, on Kaska traditional territory.

U.K.-based BMC Minerals submitted its proposal in 2017 to build the open pit and underground copper, lead and zinc mine. The proposal would see the company mine approximately 180,000 tonnes of zinc, 60,000 tonnes of copper and 35,000 tonnes of lead concentrates annually for 10 years.  

In her Jan. 2 ruling, Yukon Supreme Court Chief Justice Suzanne Duncan found that the Crown demonstrated "patience and persistence" in attempting to engage with Kaska throughout most of the consultation process.  

"The Crown is not to be held to a standard of perfection in fulfilling its duty to consult and accommodate," Duncan wrote.

"What is required is reasonableness. In this case, I have found the Crown acted reasonably in all respects but one."

Duncan ruled that the Crown failed to give reasonable consideration to the First Nation's 48-page statement of their position and concerns, which was submitted on June 14, 2022. The government's final decision on the proposed mine was issued less than 24 hours later, on June 15, 2022.

"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."

Duncan ordered that the government's decision on the mine should be set aside to allow for a consultation meeting about the First Nation's June 14, 2022 submission. The meeting must happen within 60 days, and be scheduled for one to two days, as required.

That consultation meeting should focus solely on the June 14, 2022 submission from the First Nation, with no further submissions or documents exchanged between the parties. A decision by the Crown should be then be issued within 30 days of the meeting, Duncan ruled.