Supreme Court found that consultation with First Nation over Metallic Minerals’ project was inadequate
CBC News: The Yukon government is appealing a court decision that quashes the approval of a mining project near Mayo, Yukon. It’s the latest in an ongoing dispute between the territorial government and the First Nation of Na-Cho Nyäk Dun (FNNND) over a project in the First Nation’s traditional territory.
The First Nation filed a petition to the Yukon Supreme Court in 2021, soon after the Yukon government gave the green light to Vancouver-based Metallic Minerals Corp.’s project. The quartz exploration project is to happen over 10 years on 52 claims located north of Mayo. The First Nation argued at a hearing last summer that the Yukon government didn’t seem to give much thought to FNNND’s interests or concerns before signing off on the project.
The Yukon government dismissed those complaints, telling the court that its consultation process was “reasonable,” and that the First Nation had ample opportunity to weigh in with its concerns.
The First Nation also argued that the approval amounted to “land use planning by the back door,” since FNNND does not yet have a final regional land use plan for its territory — despite being promised one in its nearly 30-year-old final agreement.
In a written decision on Jan. 31, Supreme Court Chief Justice Suzanne Duncan described “the essence of this dispute” as being whether the territorial government can approve a project in an area while land use planning is underway. Duncan decided that Yukon had failed to consult properly over the Metallic Minerals Corp. project, and failed “to act in a way that accomplishes the intended purpose of the Final Agreement.”
“The duty to consult in this case is towards the higher end of the spectrum, including but not limited to the requirements to discuss consultation process and the need for community consultation, to meet in good faith with an open mind to discuss issues and concerns raised, to seriously consider the concerns raised, to make efforts to mitigate in an attempt to minimize adverse impacts, to advise of the course of action taken and why,” the decision reads.
“The consultation in this case was inadequate.” The government’s decision on the Metallic Minerals project, therefore, is “quashed and set aside.”
Duncan granted the First Nation’s request for declarations that the Yukon government failed to meet the duty to consult and ensure meaningful participation in the management of land and resources in the traditional territory, and that it failed to consider the effect of its approval on the ongoing land use planning process.
Yukon gov’t did not breach duties around land use planning, court finds
The First Nation’s petition also asked the court for a declaration that the Yukon government had breached its duties to implement a land use planning process as laid out in Chapter 11 of the final agreement.
Duncan did not agree. “There is no finding that the Yukon government failed to diligently implement the promises of the Treaty including land use planning under Chapter 11 for the entire traditional territory,” her decision reads. “The decision under review and the evidentiary record before the Court do not support a finding of this kind.”
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In a notice of appeal filed to the Yukon Court of Appeal earlier this month, the territorial government asks for the decision and declarations made by Justice Duncan to be set aside. The government also asks that the First Nation’s requests as laid out in the original petition be dismissed, and to be compensated for legal costs associated with the case.
The First Nation has not yet filed a reply, nor has a date been picked to hear the appeal.
Duncan’s decision returns the evaluation process for the Metallic Minerals’ project to the point when the Yukon Environmental and Socio-economic Assessment Board’s report and recommendations were issued. A government lawyer told court last summer that quashing the approval would likely kill the proposed exploration project.
With files from Jackie Hong