First Nation takes Yukon gov't to court over 'fundamentally flawed' consultations

The First Nation of Na-Cho Nyäk Dun in Yukon is in court this week, arguing that the territorial government "utterly, utterly" ignored its duty to consult before approving a mineral exploration project in its traditional territory last year.

Na-Cho Nyäk Dun asks court to quash approval granted last year to mineral exploration project

The Yukon courthouse in Whitehorse. (Paul Tukker/CBC)

A Yukon First Nation is in court this week, arguing that the territorial government "utterly, utterly" ignored its duty to consult the First Nation's citizens before approving a mineral exploration project last year.

And according to the First Nation, that government decision effectively undermined the spirit and intent of its land claim agreement. 

The First Nation of Na-Cho Nyäk Dun (FNNND) filed a petition to the Yukon Supreme Court last year, 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, Yukon, and within the First Nation's traditional territory.

The problem, according to the First Nation, is that the Yukon government didn't seem to give much thought to FNNND's interests or concerns before signing off on the project. 

It's asking the court to quash the approval and declare that the Yukon government breached its duty to consult, as laid out in the First Nation's final agreement. The hearing began in Yukon Supreme Court on Tuesday, before Chief Justice Suzanne Duncan.

The exploration project is about 103 kilometres northeast of Mayo, Yukon. (YESAB)

Lawyer Nuri Frame, representing the FNNND, told the court that the government showed a "fundamentally flawed" view of what consultation means, and that the approval of Metallic Minerals' project amounts to "land use planning by the backdoor."

'As if it has no obligations at all'

Land use planning is a central issue in the case. The First Nation 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. Such a plan would determine where development could happen within Na-Cho Nyäk Dun territory, and where it couldn't.

The First Nation's traditional territory comprises a massive 160,000-square-kilometre swath of land in central Yukon. 

The government's failure so far to negotiate a regional land use plan leaves the First Nation with an "empty shell of a treaty promise," reads the petition filed to court. It says that effectively allows the Yukon government to take a "cavalier" approach to the First Nation's rights and its territory. 

"Rather than proactively implementing the spirit and intent of Chapter 11 [of Yukon's umbrella final agreement, on land use planning], Yukon acts as if it has no obligations at all. Yukon believes it is free to simply authorize any development it wishes, wherever and whenever it sees fit, regardless of FNNND's concerns," reads the documents submitted to court by the First Nation.

A sub-regional land use plan was initiated in the Beaver River watershed a few years ago, in response to ATAC Resources' application to build a mining access road. That planning process is ongoing and the road has not yet been approved.

That particular area also amounts to little more than a "postage stamp" within its whole territory, the First Nation argues, and a larger, regional land use plan is sorely needed.

In the meantime, Frame told the court, the Yukon government can't simply sidestep the process and make decisions without proper consultation. The government had constitutional obligations and "utterly, utterly" ignored them in approving Metallic Minerals' project, he said.

The Supreme Court hearing continues on Wednesday, with the Yukon government presenting its response.


Paul Tukker

Features writer

Paul Tukker is a writer and reporter with CBC News in Whitehorse. Before moving to Yukon in 2014, he worked with CBC in Sudbury and Iqaluit. You can reach him at

With files from Julien Gignac