Kaska Nation sues gov'ts over assessment of Kudz Ze Kayah mine

The Kaska Nation is taking governments to court over a recent decision to approve an assessment of a proposed hardrock mine in southeast Yukon. 

According to a recent civil lawsuit submitted in Federal Court, the Yukon and federal governments breached procedural fairness and principles of justice by greenlighting the environmental and socio-economic assessment of the Kudz Ze Kayah project, proposed in the northern Pelly Mountains.

Vancouver-based BMC Minerals, the company behind the project, wants to extract 1.8 million tonnes of zinc, 350,000 tonnes of lead and 600,000 tonnes of copper deposits over 10 years at the proposed site. At peak production, the mine will be capable of housing 250 workers.

The Ross River Dena Council is applying for a judicial review of the decision on behalf of the Kaska Nation, which is composed of five Dene-speaking First Nations in Yukon and British Columbia. The council wants the decision quashed and sent back to governments for reconsideration. Barring that, the First Nations are calling for the decision to be subject to a panel review, the most rigorous form of environmental assessment in Yukon.

Dylan Loblaw, chief of the Ross River Dena Council, told CBC News the Kaska Nation wasn't property consulted or accommodated. 

"We have some big concerns about those decisions being made without the nation's approval or agreeing to the project," he said. 

The lawsuit states rights and title have been "completely ignored" by the decision bodies.

"The effect of ignoring impacts on these Kaska rights and title is to perpetuate colonial assimilative policies and, in this case, risk the possibility of extinguishment of these rights," it states.

Allan Nixon, vice-president of external affairs at BMC, said the company has maintained transparent relations and consulted with the Kaska Nation for years.

"Really, it doesn't change our plan much at all," he told CBC News, referring to the lawsuit. "We have a decision document, so we're going to continue to move forward. 

"We want to ensure the judge has all of the facts. If there's some ruling in the future that the decision document needs to be amended or changed, we'll deal with that."

Adverse effects can be mitigated, says board

The Yukon Environmental and Socio-economic Assessment Board found the Kudz Ze Kayah project will have "significant adverse effects" on, among other things, water, traditional use and wildlife, primarily the Finlayson caribou herd, whose habitat is, in part, located within the project area. 

But, the board determined the effects can be adequately mitigated, despite pushback from Liard First Nation and the Ross River Dena Council, which believe the project's environmental footprint is too big.

On June 15, governments signed off on the assessment of the proposed project, subjecting it to a raft of conditions. The Yukon and federal government revamped the board's recommendations, which, in effect, pushed the project into the regulatory phase.

Nixon said the company will apply for the licences in the coming weeks.

A cabinet spokesperson told CBC News Yukon ministers won't be commenting on the matter because it's before the courts.

Concerns haven't been addressed

Among the modified recommendations is the creation of an oversight board, whose sole focus would be the at-risk Finlayson caribou herd. Other recommendations include the development of a caribou monitoring and mitigation program, and two years of baseline data collection on the herd before construction begins. 

The lawsuit states that the two governments didn't consider the Kaska Nation's belief that the new recommendations didn't go far enough, as it stated in a June 14 letter to the decision bodies

"In order to reasonably consult, the Crown must engage in meaningful two-way dialogue with the affected First Nation aimed at addressing concerns raised by such First Nation," the lawsuit reads.

"The decision bodies would only engage in consultation with Kaska based on the premise that the project would be approved. Substantive and meaningful two-way dialogue regarding other possible outcomes, such as a rejection of the project or referral to panel review, was an option notably excluded from the decision bodies' correspondence with Kaska."

Not just caribou

The lawsuit states governments have exclusively focused on impacts on the Finlayson caribou, adding that doing so amounts to circumscribed consultation. 

"While these impacts remain a key concern to Kaska, they are not the only impacts about which they have expressed serious concerns," it states. 

"The decision bodies must fulfill their consultation obligations with respect to the complex spectrum of Kaska rights and title before considering the potentially adverse impacts on those constitutionally protected rights and issuing any decision that advances the project."