On January 2, 2024, the Supreme Court of Yukon released its judgment in Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1. This judgment relates to a decision allowing a proposed mining project in Yukon to proceed from the assessment stage to the regulatory processing stage. The Court ruled that there was a breach of the Crown's duty to consult and accommodate the Kaska Nation (the "Kaska"), represented by the Ross River Dena Council. This breach was limited to the Crown's treatment of a submission made by the Kaska on June 14, 2022. This submission was received one day before the announced date for decision (which the Court felt was arbitrarily imposed). The decision document was issued the very next day, and recommended that the project in question be allowed to continue to the regulatory processing stage, subject to certain terms and conditions.

The Court ruled that the deep consultation required in these circumstances demanded that the June 14, 2022 submission be responded to with meaning dialogue from the Crown. The Court determined that as a result of this lack of consultation on the final step, the Crown's consultation with respect to that submission was not reasonable. Acknowledging the limited nature of the breach of the duty to consult, the Court set out a procedure that was limited to remedying that breach.1 This procedure includes a one or two day consultation meeting to occur within 60 days of January 2, 2024 – without any additional submissions. Then, within 30 days of the final day of the consultation meeting, a new decision document will be issued. The Court explicitly stated that this timeline will not be extended.2

This decision serves as a reminder that the level of consultation required in each set of circumstances must be applied carefully. If soft deadlines have been used throughout a consultation process, any shift to hard deadlines needs to be communicated with ample notice in the context of the timeline to date.

Background

This decision relates to a project proposed by BMC Minerals Ltd. called Kudz Ze Kayah.3 The proposed project involves the construction, operation, and closure of a copper, lead, and zinc mine.4 The proposed project would be located on Kaska traditional territory within the Pelly Mountain Range.5 Kudz Ze Kayah, means caribou country, and is local name for the lands on which the proposed project would be located.6 The approval process for the proposed project took place under the Yukon Environmental and Socio-economic Assessment Act, SC 2003, c 7 ("YESAA"). Approval under YESAA requires decisions to be made by representatives of both the federal and territorial governments, called the Decision Bodies (referred to collectively here as the Crown).

BMC first submitted a proposal for the project in March 2017.7 After an assessment process involving five stages and lasting approximately five years, a Decision Document was issued on June 15, 2022 which allowed the project to proceed to the regulatory processing stage subject to 38 proposed conditions.8 Ross River Dena Council, on behalf of the Kaska, then sought judicial review of the June 15, 2022 decision. The Court considered whether the Crown failed to consult Kaska reasonably and failed to accommodate them by not engaging in a meaningful two-way dialogue.9 Ross River Dena Council also alleged a breach of the duty of procedural fairness.10 The Court did not consider it necessary to consider the procedural fairness argument given the conclusion that there was a failure to reasonably consult on the June 14, 2022 submission.11

All parties involved in this case agreed that Yukon and Canada have an obligation to consult the Kaska about the decision to issue authorizations for the proposed project and that deep consultation was required.12

The Decision

Although the Court determined that there was a breach of the duty to consult in one respect, the Court also noted procedures that were considered reasonable as part of consultation.

The Court noted that the Crown's act of stating a preferred outcome did not constitute a failure to consider all outcomes. It was reasonable for the Crown to have communicated a preference to modify terms and conditions, and requesting Kaska views on why those would not be sufficient, before a rejection of the project was considered.13

The Court further concluded that the Crown did not narrow consultation, contrary to the allegations of the Kaska.14 As part of the allegations of narrowed consultation, concerns were raised that economic feasibility of the project was not considered at the assessment stage. The Court noted that the YESAA assessment process does not include an economic viability assessment. The Court then noted that such an economic assessment was "reasonably and legitimately beyond the scope of this project assessment."15

Failure to consider cumulative effects was alleged in this case. The Court rejected this argument and noted that the proposed terms and conditions allowed for adaptive management approaches and further study and consultation. The Court acknowledged that the Crown has turned its mind to cumulative effects and considered this approach to reasonably address Kaska concerns about cumulative effects.16

The Court also considered whether the Crown reasonably consulted on Kaska-led assessment processes. Ross River Dena Council recommended the use of Tu-Lidlini and Gu Cho Ka-ka Dee. Tu-Lidlini was proposed as a parallel process to the YESAA process.17 Gu Cho Ka-ka Dee, a comprehensive land use plan for RRDC traditional territory (but one not yet accepted by Yukon), was proposed to address concerns about cumulative effects.18 The Court took the view that the Crown was open to discussion about the use of both of these processes. As noted by the Court, the Crown asked for additional information about these processes, which Ross River Dena Council promised to deliver. However, no information on the processes was received prior to the case before the Court.19 The Court was clear that this conclusion is not meant to diminish the value or significance of Indigenous-led processes. Instead, this conclusion is based on the question of whether the decision made was reasonable on the basis of the record.20

The Court also addressed concerns that the Crown did not appropriately consider consultation with Kaska Elders. The Court took the view that the failure to translate documents into the Kaska language to enable participation by Elders did not constitute a failure to consult.21 The Court also noted that BMC agreed to 17 of the 24 conditions submitted to them by the Kaska Elders.22 The Kaska Elders had advised BMC in 2017 that fulfilment of all 24 conditions was required for the Elders to provide their support to BMC.23 The Court took care to note that BMC explained their rationale for not agreeing to particular conditions.24 The Court noted that discussions surrounding the Elders' conditions informed the development of the terms and conditions attached to the final decision.25 Exactly how the conditions were considered in the process leading up to the final decision was detailed by the Crown in a letter.26

However, despite a record of reasonable consultation, the Court found that in the last days that the Crown failed to live up to its duties. The Court helpfully summarized the three reasons why the Crown's conduct in relation to the June 14, 2022 submission showed a failure to reasonably consult and accommodate in these circumstances:

There are three reasons why the Decision Bodies' position on the June 14, 2022 submission showed a failure to consult and accommodate: i) it was linked to the relatively sudden setting of a hard deadline to issue the decision to approve the Project on June 15, 2022, which in the context of the previous 13 months did not demonstrate good faith; ii) there was information provided by Kaska in the June 14, 2022 submission, including specific commentary and questions about the modified terms and conditions, that required a dialogue; and iii) the setting of the June 15, 2022 deadline may have been improperly influenced by external timing pressures.27

The Court made clear that the Crown's failure to properly consult with respect to the June 14, 2022 submissions did not taint the remainder of the consultation process. The Court took issue with the shift from flexible deadlines to a hard deadline with little notice relative to the previous extensions.28 The Court acknowledged that this hardening was in the context of a process that was supposed to have been a month long, but had already been stretched by the Crown to 13 months in response to Kaska requests for more time.

Despite the failure to reasonably consult with Kaska regarding the June 14, 2022 submission, the Court noted that the Crown did not breach the duty to consult and accommodate when it acknowledged that some issues would be dealt with after the assessment process and into the regulatory process. However, it was unreasonable to defer consultation on the June 14, 2022 submission until after the assessment decision was made.29

The Court was clear that the Crown's conduct in this case satisfied the duty to consult in almost all respects. The Crown's "patience, flexibility and persistence in their many good-faith but unsuccessful attempts" to obtain feedback from the First Nations were noted and it was stated that "the Crown acted reasonably in all respects but one."30

Implications

This case makes clear that deep consultation requires extreme care and attention. Government decision makers can set hard deadlines but those deadlines must be reasonable in the circumstances. The consistency of Crown behaviour in enforcing those deadlines will be taken into account as part of those circumstances. In other words, if the Crown acts reasonably and consistently, then the enforcement of deadlines will be seen as reasonable. However, the reasonableness of the Crown's enforcement of deadlines will be dependent on the Crown's pattern of conduct. A sudden change from an established pattern will be seen as unreasonable. Additionally, having given a First Nation the opportunity to make a submission, the Crown must give themselves an appropriate opportunity to consult on that submission – in these circumstances that required them to engage directly with the Kaska. The Court ordered remedy in this case was engagement on the Kaska's final submission.

Kevin O'Callaghan was one of the counsel for BMC in this judicial review.

Footnotes

1. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at paras. 239-243.

2. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 242.

3. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 4.

4. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 1.

5. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 8.

6. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 10.

7. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 40.

8. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at paras. 39-41.

9. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 51.

10. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 52.

11. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 230.

12. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 56.

13. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 77.

14. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 109.

15. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 127.

16. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 138.

17. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 139.

18. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 140.

19. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 143, 147

20. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 149.

21. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 161.

22. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 165.

23. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 164.

24. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 168.

25. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 168.

26. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 169.

27. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 192.

28. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 193.

29. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at para. 210.

30. Ross River Dena Council v. Yukon (Government of), 2024 YKSC 1 at paras. 234-235.

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