To kick off 2024 the Supreme Court of Yukon delivered its decision in Ross River Dena Council v Yukon (Government of), 2024 YKSC 1. This case was a judicial review of the Decision Body of the Yukon Environmental and Socio-economic Assessment Board (“YESAB”) resulting from the impact assessment relating to a project proposal by BMC Minerals Ltd. that sought to have a copper, lead and zinc mine approved within the traditional territory of the Kaska Nation. (“Kaska”).
The case centered around a proposed mining project by BMC Minerals Ltd., known as Kudz Ze Kayah, located on the traditional territory of the Kaska within the Pelly Mountain Range.
The name Kudz Ze Kayah translates to “caribou country,” reflecting the significance of the area to the local Indigenous peoples. The project underwent a comprehensive approval process under the Yukon Environmental and Socio-economic Assessment Act (YESAA). This process required approval from both federal and territorial government representatives.
BMC Minerals first submitted their proposal in March 2017. After a detailed five-stage assessment process spanning approximately five years, a Decision Document was issued on June 15, 2022, allowing the project to proceed to the regulatory processing stage, subject to 38 proposed conditions. The Ross River Dena Council, on behalf of the Kaska, sought judicial review of this decision, arguing that the Crown had failed to engage in reasonable consultation and meaningful dialogue regarding the June 14, 2022, submission. They also raised concerns about a breach in the duty of procedural fairness, although the Court did not find it necessary to address this argument, given the identified consultation failure.
This case brought to the forefront the acknowledged obligation of the Crown to consult the Kaska about decisions impacting their traditional lands and the requirement for deep consultation in such scenarios.
This case required the Yukon Supreme Court to determine whether the Crown met its duty to consult and accommodate the Kaska in the context of the Yukon Environmental and Socio-economic Assessment Act (“YESAA”). Ross River (although at the early stage of potential drawn out litigation) is a helpful reminder of the principles underlying the Crown's duty to consult.
As will be discussed further, the Court determined in a narrow fashion that the Crown failed in its duty to consult and accommodate in its treatment of a June 14, 2022 submission of Kaska. The Court confirmed that the Crown's failure to respond in writing to Kaska about its correspondence outlining issues of concern to Kaska before the decision document was issued was not reasonable. The Court ordered a limited remedy in the circumstances whereby the decision was referred back to the YESAB solely for the purpose of the Crown fulfilling its duty to consult on the June 14, 2022 submission. It remains to be seen whether this decision will be appealed by Kaska or what the Crown's consultation may lead to.
Both a statutory duty under the YESAA (see s.74 (2)) and a common law duty to consult and accommodate were owed to Kaska by the Crown. In impact assessment, there appears to be a growing trend for the Crown to rely at least in part on the impact assessment process in fulfilling its duty to consult.
The Yukon Court cited the case authorities pertaining to the standard of review and confirmed that the standard of review in the case was reasonableness, but that the correctness standard applies to the aspects of this pertaining to questions of law such as the existence, extent, and content of the duty to consult. The Court confirmed that before the Decision Body can make a decision on a treaty or asserted rights of a Nation they have to fulfil their duty to consult.
Courts have clarified that while the duty to consult does not grant a veto, accommodation must be made when possible. The level of consultation is situational, depending on the stage of the assessment. However, the parties agreed that in this case, a deep level of consultation is required. The Court helpfully indicated that deep consultation encompasses discussing the consultation process itself, including the need for community consultation, meeting in good faith, seriously considering issues, making efforts to mitigate impacts, and advising on the chosen course of action and the reasons for it (Para 63).
The Court reaffirmed the principles set out in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, which state that deep consultation necessitates written explanations demonstrating that Indigenous concerns have been adequately considered. These explanations should be substantial enough to reveal the impact on Indigenous rights. All parties are expected to engage diligently in the consultation process.
In paragraph 192 the Court summarizes the three reasons on which the Decision Body failed to meaningfully consult and accommodate Kaska. These were:
- The sudden deadline to issue the decision, which in the context of the prior 13 months of discussions was not good faith.
- Kaska provided information in its June 14th correspondence which included specific comments and questions necessary to satisfy the Nation's concerns and the Court indicated that the duty consult required a written response in this instance.
- External timing pressures.
At paragraph 204 of the Court confirmed that meaningful dialogue is a pre-requisite, and in this case, as deep consultation was required the meaningful dialogue should have included a written response. The Court eloquently stated in paragraph 232 that” reconciliation as a relationship can only be advanced if parties committed to the process avoid counterproductive tactics and address issues of substance.” Cooperation and collaboration will lead to outside of the box ideas to allow parties to reach a true reconciliation.
Conclusion
In conclusion, this case represents a significant milestone in the ongoing journey towards effective reconciliation and respectful cooperation between the Crown and Indigenous peoples. This case underscores the vital importance of meaningful consultation in the context of development projects affecting traditional lands of Indigenous peoples.
This decision serves as a crucial reminder of the necessity for the Crown and decision-making bodies to engage in genuine, substantive dialogue with Indigenous peoples. It reinforces the principle that consultation cannot be superficial or merely procedural, rather, it must be a sincere effort to understand and, if possible, accommodate the concerns of Indigenous peoples.
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