Canada, Yukon chose 'quantity over quality' when consulting Kaska on mine project, court hears

Canada and the Yukon viewed consulting with Kaska on a mining project in the territory's southeast as a "box to be checked" instead of meaningful dialogue, lawyers argued this week in Yukon Supreme Court.

Lawyers for Kaska Nation presented their arguments on Tuesday and Wednesday at the start of a six-day hearing on the approval of the Kudz Ze Kayah mine. They told court the mining project was approved without adequately addressing the concerns of local First Nations. 

The project, still in development, is located about 115 km southeast of Ross River, Yukon, and owned by Vancouver-based BMC Minerals Ltd. Proposal documents say the mine is expected to produce an average of 240,000 tonnes of zinc, copper and lead annually through open-pit and underground activity, and will be in operation for a minimum of 10 years. 

The mine falls within and is named after a sacred Kaska area — kudz ze kayah means "caribou country." Along with being a key migratory ground for the Finlayson caribou herd and a habitat for other animals and plants Kaska have relied on for generations, it also encompasses burial grounds and traditional travel and trade routes. 

Ross River Dena Council (RRDC), on behalf of Kaska Nation, filed a petition for a judicial review last year of how the decision bodies — Natural Resources Canada, Fisheries and Oceans Canada and the territorial executive council office — signed off on the project after an environmental and socio-economic assessment, allowing it to move to the regulatory phase. 

Canada and the Yukon have denied acting improperly. BMC Minerals has applied for quartz and water licences in the meantime. 

Consultation should be 2-way dialogue, lawyers say

In court, Kaska Nation lawyers Mark Youden and Nicholas Tollefson focused on two alleged failures on the part of the Crown — to properly consult, and to ensure procedural fairness. 

Consultation, Youden argued, is supposed to be a meaningful two-way dialogue, but the Kaska found themselves stuck in a one-way conversation with territorial and federal officials. He accused Canada and the Yukon of taking a "fundamentally flawed" approach to consulting, choosing "quantity over quality" and viewing consultation as "an exercise to be completed, a box to be checked" before moving ahead with their desired outcome anyway. 

BMC Minerals submitted its proposal for Kudz Ze Kayah to the Yukon Environmental and Socio-economic Assessment Board (YESAB) in March 2017. Tens of thousands of pages of project-related documents created since then, Youden said, show that RRDC and Liard First Nation (LFN) raised concerns from the outset. 

The concerns included the project's potential impacts on Aboriginal rights like harvest and land access, the effect on migrating caribou, the cumulative impact given the number of abandoned mines already in the area, and economic feasibility. 

The Yukon and the federal departments acknowledged but didn't "meaningfully grapple" with those concerns, Youden argued, even as RRDC and LFN, among other things, requested a panel review and provided a list of elders' conditions for the project to proceed. Instead, the departments showed an "unwillingness to deviate" from the "preferred" outcome — to approve Kudz Ze Kayah under modified terms and conditions.

Youden and Tollefson argued Canada and the Yukon, last spring, ultimately picked an "arbitrary" date to issue a decision — June 15, 2022 — though the First Nations were told their input would be considered up to that date as well. 

That, Tollefson said, was despite significant developments the month before, including a new Environment and Climate Change Canada risk assessment on the potential impact on caribou, and further modifications to the project's proposed terms and conditions. LFN, Tollefson noted, also sent a letter touching on ongoing "capacity challenges," especially in the context of COVID-19, recent band elections and by-elections, flood risks and community deaths.

LFN and RRDC still provided a 48-page submission on June 14, 2022, which further outlined concerns about consultation, the project's potential impacts, a lack of concrete mitigation measures and knowledge gaps, particularly about the Finlayson caribou herd.

Twenty-two hours and 20 minutes later, Canada and the Yukon issued its decision, green-lighting Kudz Ze Kayah to move ahead under the modified terms and conditions. 

Tollefson said the quick turnaround didn't "inspire confidence" in the decision-making process, particularly because the governments weren't bound to make a decision by June 15. Officials, he argued, should have instead taken more time to thoroughly and fairly review and respond to RRDC and LFN. 

Kaska concerned decision 'represents train leaving the station'

While there will be more consultation as the Kudz Ze Kayah project goes through licensing, Tollefson and Youden argued that wasn't good enough.

"Kaska [Nation] is concerned that the decision represents the train leaving the station — in other words, that the decision has given the project momentum which will be impossible to stop," Youden told the court. 

"We re-emphasize that the [Kudz Ze Kayah] lands are irreplaceable to the Kaska." 

Kaska Nation is asking the court to quash the project's approval and require the federal and territorial governments to do adequate consultation. 

The hearing is scheduled to continue until next Tuesday. The Attorney General of Canada, representing the federal departments that approved the project, and the Yukon government are making their arguments this week. BMC Minerals is scheduled to make submissions next week.

In an interview after the proceedings Tuesday, LFN Chief Stephen Charlie, who's been attending the hearing in person, said Kaska Nation wasn't opposed to development, but it "can't occur as it has in the past with carte-blanche actions in our traditional territory." 

"The traditional territory of the Kaska is unceded," he said. 

"We want decision-making authorities in our traditional territory where we can protect our land, protect our water, our animals, our plants and move forward in a sustainable way [so] that our people can be proud."