The Ross River Dena Council on behalf of the Kaska Nation is appealing a recent court decision on the proposed Kudz ze Kayah mining project to the Yukon Court of Appeal.
On Jan. 2, Chief Justice Suzanne Duncan of the Supreme Court of Yukon ruled the territorial and federal governments, which are decision-making bodies responsible for greenlighting the project to the next stage in the approval process, mostly upheld their duty to consult with the First Nation about the project.
But a notice of appeal filed by the First Nation on Feb. 1 states Duncan “erred in her assessment of the Crown’s constitutional duty to consult.” The notice also lists the proposed mine’s owner, BMC Minerals, as a respondent and asks for an expedited appeal hearing.
The application is the latest in a years-long legal saga between the Kaska and the governments.
In July 2022, the First Nation applied to the court for a judicial review of a June 2022 decision document that gave a green light for BMC to start its $381 million mine located 115 km south of the Yukon community of Ross River.
The proposed mine would be in the heart of the Finlayson caribou herd’s winter range, which has raised concern amongst RRDC and members of the Kaska Nation.
Duncan’s decision states the Crown had mostly acted reasonably when consulting with the Kaska, noting it “worked hard to engage the First Nations in the consultation process” and “listened carefully and demonstrated a good understanding of the issues and concerns raised by the First Nations.”
However, Duncan found one issue concerning the June 2022 decision document.
The day before the governments were to make their decision on the project, the Kaska submitted what they say was a comprehensive document outlining their concerns on the project.
But less than 24 hours later, the project was approved to move to the next stage.
Duncan ruled the government’s conduct regarding the Kaska’s submission didn’t meet the honor of the Crown.
She ordered the decision allowing the project to proceed to the next stage to be set aside to allow for a consultation meeting on the Kaska’s submission.
The meeting was ordered to take place within 60 days of her ruling. The Crown would then be required to issue another decision on the mine no more than 30 days after the meeting.
Kaska appeal ruling
But the First Nation’s appeal sidesteps Duncan’s ruling. It asks that it be set aside and that the June 2022 decision document approving the mine to the next stage also be quashed and set aside.
Instead, the First Nation asks for the governments “to complete meaningful and deep consultation with the Kaska Nation regarding the Kudz Ze Kayah mine project.”
The First Nation also asks for the governments to reevaluate their decision to approve the mine, or for the decision to go through a Yukon Environmental and Socio-economic Assessment Board (YESAB) panel hearing.
A panel review is the highest level of environmental review in the territory. Only one other proposed project, the Casino mine, has ever been selected by YESAB for a panel review. That review has not yet taken place.
As of Thursday, no responses have been filed.