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First Nation “encouraged” by court ruling in Yukon to inadequate consultations on mining project

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A ruling by the Yukon Supreme Court regarding inadequate consultations in connection with a controversial mining project in the traditional territory of the Kaska people has been welcomed by First Nations, environmental activists and the mining company involved.

In a ruling issued last week, Justice Suzanne Duncan found that the Crown had largely met its duty to consult First Nations during the environmental impact assessment of the proposed Kudz Ze Kayah mine in southeast Yukon. But she also found that the Crown had failed to adequately consider a final, 48-page application from First Nations before giving the green light to the mine.

“It's somewhat in our interest that the decision was 50-50,” said Dylan Loblaw, chairman of the Ross River Dena Council. The First Nation had requested the judicial review in 2022 on behalf of the Kaska Nation.

The planned mine is located about 260 kilometers northwest of Watson Lake in the Yukon, on the traditional territory of the Kaska.

The Kaska Nation submitted a 48-page document on June 14, 2022 outlining significant concerns about environmental pollution, impacts to people and wildlife, and the loss of an area of ​​great significance to the Kaska people. This document never received a response from decision makers before the decision document was released the next day, June 15, 2022.

BMC Minerals' Kudz Ze Kayah mine project, approximately 115 kilometres southeast of Ross River, Yukon.BMC Minerals' Kudz Ze Kayah mine project, approximately 115 kilometres southeast of Ross River, Yukon.

BMC Minerals' Kudz Ze Kayah mine project, approximately 115 kilometres southeast of Ross River, Yukon.

BMC Minerals' Kudz Ze Kayah mine project, approximately 115 kilometres southeast of Ross River, Yukon. (BMC Minerals)

Duncan found the decision was “not transparent, understandable or justified” one day after receiving the Kaska Nation's comments and ordered the decision to be stayed until Yukon and Canada consult with Kaska representatives on their final response beginning in June 2022. The consultation will focus on that written response.

The hearing must take place within 60 days of the court's decision, and a new decision document must follow within 30 days.

Loblaw is convinced that a compromise will pave the way for productive discussions about the mining project.

“Ross River Dena Council is encouraged that the court has overturned the decision of the decision-making bodies and we will take advantage of the opportunity presented to us by the court,” Loblaw said.

Environmentalists in the Yukon are also cautiously optimistic about the ruling.

“This is more than a small victory,” said Lewis Rifkind, mining analyst at the Yukon Conservation Society.

“Many of the issues raised in the statement of 14 June [2022] The proposals addressed environmental issues, particularly those related to caribou. We are pleased that there will be further consultation on this.”

The company is “committed to ensuring that this benefits Kaska”

Allan Nixon, vice president of external relations at BMC Minerals, the UK-based company behind the Kudz Ze Kayah project, also welcomed the court decision, saying it brought clarity.

“I think the ruling says that the government's decision-making bodies did an adequate job of consulting, but did not complete it,” he said, adding that it was important that the First Nation had the opportunity to raise its concerns.

“We want to make sure this benefits the Kaska, the Yukon and Canada. We will be one of the largest producers of critical minerals, particularly zinc, in Canada. We believe this is a once in a lifetime opportunity and we can't wait to get started.”

Protesters gather outside the Yukon Courthouse in Whitehorse on April 17, 2023 to show support for the Kaska Nation in their legal battle against the approval of the proposed Kudz Ze Kayah mine in southeastern Yukon.Protesters gather outside the Yukon Courthouse in Whitehorse on April 17, 2023 to show support for the Kaska Nation in their legal battle against the approval of the proposed Kudz Ze Kayah mine in southeastern Yukon.

Protesters gather outside the Yukon Courthouse in Whitehorse on April 17, 2023 to show support for the Kaska Nation in their legal battle against the approval of the proposed Kudz Ze Kayah mine in southeastern Yukon.

Protesters gathered outside the Yukon Courthouse in Whitehorse last April to show their support for the Kaska Nation in its legal battle against the approval of the proposed Kudz Ze Kayah mine. (Virginie Ann/CBC)

The Kudz Ze Kayah project has been a point of contention in the Yukon for years.

An assessment of the proposed mining project was conducted by the Yukon Environmental and Socio-economic Assessment Board (YESAB) over a five-year period beginning in 2017.

“It was clear from the assessment that this could have a significant impact on the Finlayson caribou herd and that it could well lead to a decline in the herd,” said Randi Newton, conservation manager for the Canadian Parks and Wilderness Society (CPAWS) Yukon.

For Loblaw, past and future generations are at the heart of its concerns.

“We have a responsibility to care for what our ancestors and elders have left us,” he said. “We take that responsibility seriously. We remain confident that we can protect our interests for future generations.”