White River First Nation v. Yukon (Minister Of Energy, Mines And Resources), 2013 YKSC 66
In this case, the Yukon Supreme Court determined that the Crown breached its duty to consult the White River First Nation (First Nation) by failing to give the First Nation an opportunity to respond to the Crown's decision to reject a recommendation that a mining project not proceed due to impacts on a caribou herd.
Tarsis Resources Ltd. (Tarsis), an early stage exploration company, applied for a five-year Class III Mining Land Use Approval Permit for the White River– Quartz Exploration Project in the Yukon. Tarsis' proposed activities under the permit included the use of heavy machinery, drilling, clearing, trenching, and ongoing reclamation and decommissioning activities.
Under the Yukon Environmental and Socio-Economic Assessment Act (Act), the proposed exploration activities were required to undergo an environmental assessment (Assessment). The Assessment in this case — a comprehensive 79-page document — recommended that the project not be permitted to proceed as it would have significant adverse effects on wildlife, wildlife habitat, and traditional land use and culture that could not be mitigated. Aft er receiving the negative Assessment, the Director of Mineral Resources (Director) recommended that Tarsis' applications proceed to the regulatory approval stage.
The Court determined that the Director's duty to consult and accommodate the First Nation was at the more stringent end of the spectrum, requiring "deep consultation" because, among other things, the Crown was contemplating a decision that was "completely at odds" with a recommendation rendered after an in-depth consultation process. The First Nation should have been given the opportunity to respond to the data that was used to reject the Assessment. Having breached the duty to consult and accommodate, the Court quashed the Director's decision and ordered that there be further "deep consultation."
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