The Supreme Court of Yukon recently set aside a decision under the  Yukon Environmental and Socio-economic Assessment Act (YESAA) that allowed an open-pit and underground mining project to proceed to the regulatory permitting stage, subject to certain terms and conditions (the Decision). In Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1, the court found that the decision-makers within the Yukon and federal governments did not adequately consult the Kaska Nation1  (Kaska) on their final submission during the YESAA process and ordered further consultation with prescribed timelines. This case raises numerous notable issues, including the court's approach to assessing the meaningfulness of consultation, the timelines ordered within the remedy, how the court dealt with cumulative effect concerns, and how the court dealt with arguments that it could not rely on the proponent's engagement efforts in assessing the adequacy of consultation.

By way of background, this decision relates to the Kudz Ze Kayah Project, a copper, lead and zinc mine proposed by BMC Minerals Ltd. (BMC) approximately 115 km south of Ross River. The project is within the traditional territory of the Kaska, where the Nation asserts Aboriginal rights and title. The Ross River Dena Council (RRDC), on behalf of Kaska, asked the court to set aside the Decision on the basis that the decision-makers failed to adequately consult and accommodate Kaska prior to issuing the Decision based on a number of different grounds.

The court dismissed the majority of RRDC's allegations and found that the Crown “demonstrated patience and persistence in its ongoing engagement attempts”, maintained an open mind (including the possibility of rejection of the project as an option), and attempted to address the concerns in various ways, including developing modifications to the terms and conditions and referring the Yukon Environmental and Socio-economic Assessment Board screening report for reconsideration. However, the court found one deficiency: the Crown failed to engage in meaningful dialogue regarding the June 14, 2022 submission of Kaska (which was submitted the day before the Decision was issued). The Decision made several references to the June 14, 2022 submission, but a formal response was not provided to Kaska until after the Decision was issued. The court found the Crown was obligated to engage in further meaningful dialogue on the content of the June 14, 2022 submission, noting that meaningful consultation is “not simply a process of exchanging information” and that where deep consultation is required “a dialogue must ensue and that dialogue should lead to demonstrably serious consideration of accommodation”. Despite affidavit evidence before the court that federal and Yukon government officials reviewed the submission before issuing the Decision and determined that the submission did not raise any new issues or information, the court found there was deficient consultation for three reasons:

  • First, the Crown provided Kaska (specifically RRDC and Liard First Nation) with only three weeks advance notice of a hard deadline for making a decision, which was a break “from the pattern of soft deadlines and easy and regular extensions established over the previous 13 months”. The court found that there was no question that the decision bodies were statutorily required to issue a decision that was long overdue, but concluded that the hard deadline communicated on May 26, 2022 contradicted prior correspondence that invited further dialogue and did not set a deadline for a decision. The court held the pattern that had previously been established made it “[i]mportant for [the decision bodies] not to end the consultation without proper notice” and to ensure Kaska have the opportunity to express all their concerns with sufficient time for the decision bodies to give their concerns serious consideration and potentially integrate them into the proposed plan of action. The court found that the references to the June 14, 2022 submission in the Decision were “incomplete and not a substitute for meaningful dialogue”.
  • Second, the court found there was new information provided in the June 14, 2022 submission that required dialogue and not just a written response. This included new information on the First Nations' position about certain modified terms and conditions and explanations as to why they were dissatisfied with the terms and conditions. The court found that even if the decision bodies believed they had received no substantively new information, “deep consultation required them to explain to Kaska why the information in the June 14 submission did or would not change their decision”. The decision bodies issued a June 24, 2022 letter, addressing the concerns raised in the June 14, 2022 submission, but the court found that this was not sufficient because “it was a written document, not a discussion, and was issued after the Decision was made”.
  • Third,  the court found that ending the consultation process a day after receiving the June 14, 2022 submission was “an inappropriate succumbing to external timing pressures, rather than allowing the consultation process to run its course”. In this case, the deadline to release the Decision only became firm after the Crown received a letter from BMC indicating it would cancel a scheduled drill program and take legal action to compel the decision bodies to fulfill their legislated duties.

The court set aside the Decision document to allow a consultation meeting on the June 14, 2022 Submission. The court specified that no further submissions or documents shall be exchanged except for an agenda, the meeting must happen within 60 days, it must be scheduled for 1 day with the possibility of a 2nd day, and a decision document must be issued within 30 days of the final day of the consultation meeting.

This decision raises several important points in developing consultation strategies.

First, it is another example of the increased scrutiny of courts relating to the meaningfulness of consultation and the importance of two-way verbal dialogue where possible in addition to written communication, particularly when deep consultation is owed. It also highlights how continued extensions of processes can create expectations relating to how consultation will come to a close – all of which also needs to consider the procedural fairness owed to proponents.

Second, the remedy is unusually prescriptive in terms of setting out the timelines for further consultation. In past cases where the decision was quashed for inadequate consultation, timelines for further consultation and reconsideration were not specified. It will be interesting to see whether this becomes more common, particularly when there is a finding of inadequacy on a narrow ground. It is likely that these timelines were in response to concerns about a further process of repeated extensions and findings that the court made about the Kaska not fulfilling their reciprocal obligations. The court noted that, at times, Kaska failed to substantively respond to modified terms and conditions provided by the Crown, frustrated the Crown's good faith attempts to mitigate the concerns expressed by Kaska, and unjustifiably prolonged the consultation process.

Third, the court dismissed the submission that it could not consider BMC's engagement with the Kaska in assessing the adequacy of consultation because there had been no formal delegation. This is consistent with the weight of the jurisprudence but a helpful clarification in light of the Ontario Superior Court's decision in Ginoogaming First Nation v. Her Majesty the Queen in Right of Ontario et al.,  2021 ONSC 5866 that erroneously did not consider the proponent's consultation efforts because there was no formal delegation.

Fourth, the court dismissed the First Nations' submission that, in light of Yahey v. British Columbia, 2021 BCSC 1287, the decision-makers should have attempted to identify the existing level of cumulative effects on the Finlayson Caribou Herd, what the threshold is for the maximum level of industrial development in Kaska territory that would enable the Kaska to exercise their Aboriginal rights, and whether that threshold was reached by the project. The court found that the decision-makers did not ignore or fail to grapple with cumulative impact concerns and that this issue was sufficiently addressed through terms and conditions that promoted adaptive management approaches as well as committing to further study and consultation. The court concluded that the principles and conclusions in Yahey were not directly applicable because of factual and contextual differences, including that Yahey was a treaty infringement claim dealing with established rights and that the degree of industrial development in the First Nations territory was much higher in Yahey  than in this case.

Footnote

1. The Kaska Nation is comprised of the Ross River Dene First Nation, Liard First Nation, the Daylu Dena Council, Dease River First Nation, and Kwadacha Nation.

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