Yukon gov't disputes claim it didn't fully consult First Nations over Kudz Ze Kayah mine project

The Yukon government is rejecting claims that it didn't adequately consult with the Kaska Nation before green-lighting a proposed mining project in the central territory.

On Wednesday, the government filed its response to a legal action brought forward earlier this year by the Ross River Dena Council on behalf of the Kaska Nation, which is composed of five Dene-speaking First Nations in Yukon and B.C. The First Nations want a judicial review of the federal and territorial government decisions to sign off on an environmental assessment of the Kudz Ze Kayah project.

"Yukon has an ongoing obligation to conduct deep consultation with Kaska ... on the proposed Kudz Ze Kayah mine project," reads the government's response, filed to Yukon Supreme Court.

"Yukon has fully discharged that duty to date, and will continue to do so as the project moves through the regulatory approval phase."

Vancouver-based BMC Minerals, the company behind the Kudz Ze Kayah 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, about 115 kilometres southeast of Ross River, Yukon. At peak production, the mine will be capable of housing 250 workers.

The Yukon Environmental and Socio-economic Assessment Board (YESAB) found the project will have "significant adverse effects" on the environment — in particular, the Finlayson caribou herd. 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.s

Issuing the decision document

In June, the Yukon government accepted YESAB's recommendation, which included a raft of conditions, and gave the project the go-ahead. The decision was issued despite an eleventh-hour attempt by the First Nations to intervene.

The government's response to the court this week describes how officials had given notice weeks before that its decision would be issued on June 15.

Those court documents then describe how, on June 14, at about 5 p.m., the Liard First Nation and Ross River Dena Council sent a 48-page submission to the decision-makers explaining why they should either delay the decision or reject the project.

Government officials did neither, and instead issued a decision on June 15 to accept YESAB's recommendation.

"After review and analysis lasting well into the next day, Yukon and Canada both concluded that the submission did not raise any new issues or present any new facts. It was simply a recapitulation of issues and perpectives that had previously been communicated by Kaska," reads the Yukon government's response to the court this week.

"The Decision Bodies therefore proceeded to issue the Decision Document."

The government argues that the decision-making process gave ample opportunity for the Kaska Nation to participate, and that the process "met all the requirements for procedural fairness."

It also argues that the court does not have the authority to "set aside or bypass" the assessment process laid out in the Yukon Environmental and Socio-economic Assessment Act.

An affidavit from Stephen Mills, deputy minister with the Yukon government's executive council office, also argues that the government's June decision is not the end of consultations with First Nations. He says they will have more opportunities to raise concerns as the project now moves into the regulatory phase.

A hearing into the Kaska Nation's court application is scheduled for April 11 to14, 2023.