RRDC Seeks Judicial Review of Kudz Ze Kayah Mine Approval on Behalf of All Kaska Nations

The Ross River Dena Council (RRDC) has filed an application in Federal Court to overturn the approval of the Kudz Ze Kayah mining project.

The mine received the green light from the Yukon and federal governments on June 15 after a lengthy and controversial assessment phase. Now the case will go before a judge to review the decision of the two governments.

The project is located 260 kilometers northwest of Watson Lake and 115 kilometers south of Ross River. It is 25 kilometers west of the Wolverine mine and 24 kilometers south of Lake Finlayson. The mine site is located in the middle of the main range of caribou which are listed as “species of special concern” in the Species at Risk Act.

The application to the court indicates that there was a failure to reasonably consult and conduct due process with respect to Indigenous rights.

The project, launched by BMC Minerals in 2017, was recommended for initial approval in 2020 by the executive committee of the Yukon Environmental and Socio-Economic Assessment Board (YESAB). The federal government found shortcomings and sent it back for further consideration. This review prompted an unusual tie vote by the YESAB Executive Committee in March 2021.

Two members of the committee considered that the negative impacts of the project could not be mitigated and that the project should be purely and simply rejected; the other two thought the terms and conditions would be sufficient.

Failing to agree, the project defaulted to YESAB’s previous decision and was approved.

The governments of Yukon and Canada have received YESAB’s decision and amended it to include additional terms and conditions related to First Nations concerns.

The First Nation says this decision was taken “without consultation with Kaska”.

The court document describes how the Kaska chiefs wrote a joint letter asking that the project be rejected in April 2021. Canada and Yukon did not respond to the letter. In January 2022, the chiefs were informed that there was only potential for discussion regarding the terms and conditions of the approval.

RRDC lawyers argue that the consultations were framed and limited to preclude a fair consideration of all options. No information that could inform decision-making on industrial cumulative effects was provided. Questions about the economic viability of the project remained unanswered. Any consideration of whether or not the recommended mitigations would actually work has been pushed back to the future.

The case alleges that Yukon and Canadian officials refused to consider anything about rejecting the project and that the amended terms and conditions were crafted by the two decision-making bodies “behind closed doors, without any involvement , engagement or consultation with Kaska”.

Map of the traditional territory of the Kaska Dena. (Kaska Dena tip/screenshot)

In March 2022, another letter was sent by the Chiefs regarding the economic viability of the project, the implications of another abandoned mining project on their traditional lands, and the project’s contribution to cumulative effects on Kaska traditional territory.

None of this correspondence went through the YESAB process, so nothing is publicly available and could not be verified by the New.

Nonetheless, the court document says the decision-making bodies responded with a 40-page letter in April stating that the concerns and issues could be resolved through the amended terms and conditions or through settlements. Then the two governments sent another letter on May 25, indicating their intention to release a decision document on June 15.

A meeting of all parties was held on June 8 to discuss the impending decision. Canada and Yukon have assured that the decision-making bodies will review and consider any comments, information or concerns provided by June 15 and before rendering a decision. The RRDC and Liard First Nation (LFN) got to work to meet the pending deadline. On June 14, they submitted a 48-page report.

Less than 24 hours after receiving the bid from the two chiefs, approval of the project was announced in two separate press releases, one from the federal government and the other from the office of the Yukon premier.

The RRDC made this request for itself and on behalf of all members of the greater Kaska Nation, which includes LNP, Dayla Dena Council, Dease River First Nation and Kwadacha First Nation.

The traditional territory of the Kaska Nation covers more than 24 million hectares and spans three jurisdictions, including 25% of the Yukon, 10% of British Columbia and a large swath of the Northwest Territories along the Yukon border.

Contact Lawrie Crawford at lawrie.crawford@yukon-news.com

Clarification: This story has been edited to clarify that some changes were made by decision-making bodies after the YESAB standoff in March 2021.