Consultation with First Nation over mining project was 'reasonable,' Yukon government tells court
First Nation of Na-Cho Nyäk Dun asking court to quash approval of 10-year exploration project
The Yukon government says it fulfilled its duty to consult an affected First Nation before approving a mineral exploration project near Mayo, last year.
And government lawyers argued in Yukon Supreme Court this week that a regional land use plan is not a prerequisite for any future development.
The issue was before the court in Whitehorse this week as the First Nation of Na-Cho Nyäk Dun (FNNND) petitions against the approval granted last year to B.C.-based Metallic Minerals Corp. The company plans to do 10 years' worth of exploration work on dozens of claims north of Mayo, within the First Nation's traditional territory.
The work would be seasonal, accessible only by helicopter, and involve a work camp of up to 20 people. Short roads or trails may be built on site but no heavy equipment will be operated there, the company has said.
FNNND has argued that the project is in a significant and pristine area and that Na-Cho Nyäk Dun citizens weren't adequately consulted before the approval was granted. It's asking the court to quash the approval.
For FNNND, the dispute has raised questions that go beyond this specific project — about regional land use planning, and what's required by the territory's umbrella final agreement.
The First Nation has argued that it's been waiting nearly 30 years for a regional land use plan, and that approving projects such as the Metallic Minerals plan effectively undermines any planning process to come. Lawyer Nuri Frame told court this week the approval amounted to "land use planning by the back door."
The Yukon government dismisses those arguments.
Government lawyer Kimberly Sova told court on Wednesday that the Metallic Minerals project was evaluated by the Yukon Socio-economic Assessment Board (YESAB), and that's when Na-Cho Nyäk Dun was able to weigh in with any concerns. YESAB ultimately recommended the project go ahead, and the Yukon government accepted the recommendation with seven added terms and conditions.
Those terms and conditions involved "substantial modifications" to YESAB's recommendations and were informed by discussions with the First Nation, reads the government's written submission to the court.
"Yukon had discretion to structure this consultation as it thought would be most effective and efficient and had no obligation to conform to a consultation process preferred by FNNND. The consultation process Yukon used was reasonable," the document reads.
Land use planning 'very, very difficult'
FNNND has pointed to Chapter 11 of Yukon's umbrella final agreement, which lays out the land use planning process, to argue that the dispute over Metallic Minerals' project hinges on some basic treaty rights — in this case, the First Nation's right to more meaningful and comprehensive consultations.
Right now, there is no regional land use plan for the area. Such plans have only been completed for two regions of Yukon, and one of those — the Peel watershed plan — was the subject of years of court battles, ultimately landing before the Supreme Court of Canada.
Developing regional land use plans has "proven to be very, very difficult," Sova told the court.
"It's a little bit unwieldy, the way [the process] is set out," she said.
But Frame argued that even in the absence of a regional land use plan for FNNND territory, the government must honour the spirit and intent of Chapter 11. He said the land use planning process is intended to move things beyond a colonial approach and make the First Nation a full partner in decision-making.
Sova responded on Wednesday, saying that the YESAB process was designed to ensure First Nations' participation and input, and is an effective tool to use in the absence of a regional land use plan.
"There are other means to approximate the result of land use planning," Sova told the court.
She also argued that the wording of Chapter 11 means that regional land use planning is "voluntary" — in other words, the government is not obliged to ever begin the process. She also said that development can continue, with environmental assessments done and and decisions issued, in the absence of a regional land use plan.
Meanwhile, YESAB's 2020 evaluation report on the Metallic Minerals project acknowledges the First Nation's position, and also the board's inability to evaluate a project's impact on treaty rights.
"NND states that it cannot support new development within its Traditional Territory until a land use plan is in effect," the YESAB report states.
"Land use plans often inherently incorporate a cumulative effects perspective into their plans. While the Designated Office considers cumulative effects in the evaluation reports, YESAB recognizes that the assessment process is not an appropriate substitute for land use planning."
Sova also told court this week that FNNND's suggestion that the approval of Metallic Minerals' project does not remove that area from any future land use planning.
"You can plan future uses of already-used land," she said.
Supreme Court Chief Justice Suzanne Duncan reserved her decision on the FNNND petition.
If it is granted and the approval of Metallic Minerals' project is quashed, Sova told court that would likely kill the exploration project.