Kaska 'pushed the envelope' on consultation over Yukon mine, governments and company tell court

The Crown did its part when consulting Kaska Nation on a proposed mine in southeast Yukon, government and company lawyers say, and any faults or failures lie with how First Nations participated in the process. 

That was among the arguments brought forward by the Attorney General of Canada, the Yukon government and BMC Minerals Ltd. during a six-day Yukon Supreme Court hearing that ended Tuesday. 

At the centre of the case is BMC Minerals' Kudz Ze Kayah project, a lead-copper-zinc mine set to be built about 115 kilometres southeast of Ross River in an area sacred to Kaska. Decision bodies — Natural Resources Canada, Fisheries and Oceans Canada and the Yukon government — signed off last June on the project moving into the regulatory phase following an environmental and socio-economic assessment.

Ross River Dena Council, on behalf of Kaska Nation, filed a petition a few months later seeking a judicial review of the decision, alleging the Crown did not meet its duty to consult with Kaska beforehand. 

Lawyers for Kaska Nation spent two days outlining what they said was an unfair and inadequate consultation process, where Canada and the Yukon allegedly listened to Kaska concerns but failed to meaningfully address and incorporate them. A high standard, they argued, was required due to the mine's potential to have a serious impact on the Finlayson caribou herd — which migrates through the area and which the Kaska have depended on for generations — as well as other wildlife, plants and Kaska rights. 

The nation wants the project approval quashed and for proper consultation to take place.

Any consultation failures 'lie with the Kaska,' BMC lawyer argues

Lawyers for both the federal and territorial governments and BMC Minerals, however, argued beginning Thursday that a fair, thorough process already happened.

All three parties pointed to five years of documents — the time between BMC Minerals submitting its proposal to the Yukon Environmental and Socio-economic Assessment Board and the project's approval — they said shows information-sharing, numerous invitations to meetings and project changes based on Kaska feedback. 

Those changes included the federal departments referring an initial project recommendation back to the assessment board for reconsideration and amending the terms and conditions under which the project would be allowed to proceed. BMC Minerals' lawyers also noted the company, among other things, reduced a planned two-lane access road to one lane after Kaska opposed widening the road at all, and made an "expensive" switch from wet tailings storage to dry-stack tailings. 

"This is not simply a case of Kaska saying things and getting blown off," company lawyer Roy Millen said. 

Millen's co-counsel Kevin O'Callaghan, meanwhile, said Kaska was provided "hundreds of thousands of dollars" to help with capacity issues related to participating in the consultation process, hired their own consultants and ordered their own assessments. 

He claimed any failure in the consultation process "lies with the Kaska" and that the Liard First Nation and Ross River Dena Council "pushed the envelope on consultation to the extent that it was near-frustration," accusing them of waiting until the "last minute" to provide written submissions, rejecting meetings and not providing relevant information when given the chance. 

Separately, Attorney General of Canada lawyer Marlaine Anderson-Lindsay argued federal and territorial government representatives were "constantly" looking for dialogue with Kaska but weren't always getting anything "of substance."

"It wasn't for a lack of trying," she said. 

Yukon government lawyer I.H. Fraser alleged Kaska had a negotiation, not consultation, mindset and that the documents show a "conceptual gap" in what Kaska Nation and the decision bodies wanted to achieve.

Judge hopes to have decision ready 'before July'

Both BMC Minerals and the Attorney General of Canada also argued that the decision bodies fairly reviewed a 48-page submission sent by Kaska Nation on June 14, 2022, before approving Kudz Ze Kayah less than 24 hours later. 

Canada and the Yukon, at that point, had five years' worth of information, Canada lawyer William Lu argued, and after spending hours reviewing the submission, reasonably concluded it didn't contain information Kaska hadn't previously raised. 

Lu noted there'd been five extensions on a decision date since July 2021, so Kaska shouldn't have been caught off-guard by the June 15 date. Another extension, he added, wouldn't have been reasonable because the decision bodies already had the information they felt they needed, and had to consider the fairness of the process to BMC Minerals.

Canada, the Yukon and BMC Minerals are asking for the petition to be dismissed. 

Yukon Supreme Court Chief Justice Suzanne Duncan reserved her decision, but said she hoped to have one ready "before July." 

In an interview Monday, BMC Minerals CEO and president Scott Donaldson said he saw the court case as a political dispute between Kaska and the federal and territorial governments, and that he was "quite disappointed" there was "argument" between the parties.

However, he said the hearing had shown him a possible "path forward on a couple of things" and that he believed his company and Kaska have had a good relationship from "day one," noting BMC Minerals began conversations with Ross River Dena Council's chief and council back in 2014.  

"One of the reasons we bought the project was as a result of those conversations around how we would work together," Donaldson said.

"Things have to be done properly, and we've always said that we want to have this project leave a really strong legacy and we want really strong Kaska involvement, and if that takes us a few months longer to sort that out, then that's how long it takes."