Ross River Dena Council v Yukon (Government of), 2024 YKSC 1

SUPREME COURT OF YUKON Citation: Ross River Dena Council v Yukon (Government of) , 2024 YKSC 1 Date: 20240102 S.C. No. 22-AP008 Registry: Whitehorse BETWEEN: ROSS RIVER DENA COUNCIL, ON ITS OWN BEHALF, AND ON BEHALF OF ALL MEMBERS OF THE KASKA NATION AND THE KASKA NATION PETITIONER AND GOVERNMENT OF YUKON (DEPUTY MINISTER, EXECUTIVE COUNCIL OFFICE), THE ATTORNEY GENERAL OF CANADA AND BMC MINERALS LTD. RESPONDENTS Before Chief Justice S.M.

Duncan Counsel for the Petitioner Mark Youden, Nicholas Tollefson, and Maya Stano Counsel for the Respondent, Government of Yukon (Deputy Minister, Executive Council Office) Counsel for the Respondent, Attorney General of Canada Counsel for the Respondent, BMC Minerals Ltd. I.H. Fraser and Amy Porteous Marlaine Anderson-Lindsay and William Lu Roy W.

Millen, Ariel Solose, and Kevin O’Callaghan REASONS FOR DECISION OVERVIEW [ 1 ] A decision that allows the construction, operation, and closure of a copper, lead, and zinc mine project (the “Project”) within Kaska traditional territory to proceed to the regulatory permitting stage was jointly made by the Yukon government and two federal government departments on June 15, 2022. [ 2 ] Ross River Dena Council (“RRDC”), on behalf of the Kaska Nation (“Kaska”), asks the Court to set aside this decision because the government departments, called “Decision Bodies” under the applicable project assessment legislation, failed to consult with and accommodate reasonably Kaska before issuing their decision, thereby not meeting the honour of the Crown.

In addition, RRDC says the decision was unreasonable and flawed because it was made in a procedurally unfair manner. RRDC asks the Court to refer the decision for redetermination by the Decision Bodies or for further recommendation by the Yukon Environmental and Socio-economic Assessment Board (“YESAB”) after a panel hearing. The petitioner also requests an order requiring the Decision Bodies to complete

deep consultation before a new decision is issued, including giving full and fair consideration to the June 14, 2022 submission of Kaska, and consulting about the application of Kaska-Centric Indigenous assessment processes. [ 3 ] The Decision Bodies, represented by the Yukon government and the Attorney General of Canada, oppose this petition. They say they met their duty of deep consultation through relying in part on the assessment process under the Yukon Environmental and Socio- economic Assessment Act , SC 2003, c 7 (“ YESAA ”), and by engaging directly with Kaska.

They also say their issuance of the decision on June 15, 2022, was not a breach of procedural fairness. [ 4 ] The company who proposed the Project is BMC Minerals Ltd. (“BMC”), also called the proponent. BMC submitted the Project proposal to YESAB in March 2017, responded to multiple requests for information from YESAB over the following four years, and engaged with Kaska before and during the assessment process.

BMC argues that the Decision Bodies fulfilled their duty to consult and accommodate, as evidenced in part by the modified and new terms and conditions from those recommended by YESAB, in response to concerns of Kaska. BMC also says the process was procedurally fair and asks the Court to dismiss the petition. [ 5 ] This case requires a determination of whether the Crown has met its duty to consult and accommodate Kaska in the context of the YESAA process. The standard to be applied by the Court in this assessment is reasonableness.

The Court is not to substitute its decision for the decision under review. [ 6 ] The Crown in this case demonstrated patience and persistence in its ongoing engagement attempts with Kaska. There was no failure of the Crown in its consultation and accommodation obligations owing to Kaska except in one respect. [ 7 ] The Crown failed in its duty to consult and accommodate in its treatment of the June 14, 2022 submission of Kaska. The failure of the Decision Bodies to respond directly to Kaska about this document before issuing the Decision Document was not reasonable in all of the circumstances.

The remedy is to refer the decision to the Decision Bodies for consultation on the June 14, 2022 submission.

BACKGROUND The Project [ 8 ] The proposed open pit and underground copper, lead, and zinc mine is proposed to be located on lands within Kaska traditional territory, approximately 260 kilometres northwest of Watson Lake, Yukon, 115 kilometres southeast of Ross River, and 24 kilometres south of Finlayson Lake, within the Pelly Mountain Range. [ 9 ] BMC proposes to mine approximately 5,500 tonnes of ore per day, for an approximate production of 180,000 tonnes of zinc, 60,000 tonnes of copper, and 35,000 tonnes of lead concentrates each year for 10 years.

The time between construction and conclusion of closure monitoring is expected to be approximately 38 years. [ 10 ] BMC has named the Project Kudz Ze Kayah, meaning caribou country in Na’hani’ Dena language. This is the same name that Kaska call the land where the Project is proposed to be located. Kudz Ze Kayah Lands [ 11 ] The Kudz Ze Kayah Lands (“KZK Lands”) are a core area of Kaska traditional territory. While the KZK Lands do not have specific boundaries, they lie within the range of the Finlayson Caribou Herd (“FCH”), and specifically at the confluence of the FCH post-calving, rutting, and winter ranges.

The FCH belongs to the Northern Mountain population of woodland caribou, listed as a species of special concern in

Schedule 1 of the Species at Risk Act , SC 2002, c 29 (“ SARA ”). The KZK Lands are significant to Kaska not only because of harvesting FCH, but also because of harvesting other large game, fishing, trapping, gathering, and trading. There are several sacred burial sites in and around KZK Lands, and it contains trails of importance. The KZK Lands are close to three abandoned mine projects – Wolverine, Ketza River, and Faro. The KZK Lands are also surrounded by a large number of active and historical mineral claims and tenures.

The Parties [ 12 ] The petitioner, RRDC, is a “band” within the meaning of the Indian Act , RSC 1985, c I-5 , and an “Aboriginal people” within the meaning of s. 35(1) of the Constitution Act, 1982 . [ 13 ] RRDC brings this petition on behalf of all citizens of the Kaska Nation and the Kaska Nation itself. The Kaska Nation includes RRDC, Liard First Nation (“LFN”) including Daylu Dena Council, Dease River First Nation, and Kwadacha Nation. These First Nations are located in both the Yukon and British Columbia.

Kaska traditional territory is in southeastern Yukon and extends into northern British Columbia and the western Northwest Territories. RRDC, whose main community is Ross River, and LFN, whose main community is near Watson Lake, are the two First Nations who are geographically the closest to the proposed mine. [ 14 ] The Kaska includes members called Pelly Banks – they originate from the Kaska region that includes the headwaters of the Pelly, Hoole, Nahanni, Campbell, Black, and Hyland Rivers watershed areas.

Pelly Banks is not a separate First Nation but are members of the Kaska Nation. [ 15 ] None of the members of the Kaska in the Yukon is a signatory to the Umbrella Final Agreement (“UFA”) in the Yukon. The Kaska specifically rejected a treaty-based land claim agreement based on the UFA. The Kaska claim Aboriginal rights and title within their traditional territory.

[ 16 ] The Government of Yukon represents the Deputy Minister, Executive Council Office for the Yukon, the delegate of the member of the Executive Council of Yukon designated as the territorial minister for the purposes of the YESAA , and one of the Decision Bodies. It is a Decision Body because various departments of the Government of Yukon will be required to issue regulatory authorizations or permits for the Project. [ 17 ] The Attorney General of Canada represents the two federal Decision Bodies, Natural Resources Canada (“NRCan”) and Fisheries and Oceans Canada (“DFO”).

NRCan is required to consider the authorization of a licence under the Explosives Act , RSC 1985, c E-17 , and Regulations because the Project includes the manufacturing and storage of explosives, including the construction and operation of a bulk explosives plant by the Project’s explosives supplier.

DFO is required to consider the issuance of an authorization under the Fisheries Act , RSC 1985, c F-14 , in order to allow a proposed work, undertaking, or activity that would otherwise contravene the prohibition against the harmful alteration, disruption, or destruction of fish habitat under the Fisheries Act . [ 18 ] The federal Decision Bodies were supported in meeting their consultation obligations by the Canadian Northern Economic Development Agency (“CanNor”), specifically its Northern Project Management Office (“NPMO”). The Attorney General of Canada also represents CanNor.

In its role as Crown Consultation Coordinator it: • identifies the Indigenous groups that are potentially adversely affected by the Project proposal and assesses the scope of the Crown’s duty to consult based on project location, extent of adverse impacts, and Crown knowledge of asserted or established Aboriginal rights in that area; • facilitates early and meaningful participation of the Indigenous groups in the YESAA process; • corresponds with Indigenous groups throughout the assessment process to explain the federal approach to consultation and to encourage Indigenous groups to provide comments about impacts on their rights in the assessment process; and • maintains the consultation record, which is a compilation of all documents including correspondence and meeting notes of Crown consultation, and which assists in tracking the issues, comments, and concerns raised by Indigenous groups as well as provides a basis for analysis by CanNor and the Decision Bodies of the adequacy. [ 19 ] BMC and BMC's parent company, BMC (UK) Limited – a private United Kingdom-based company – are engaged in the assessment, acquisition, and development of base metals projects.

BMC purchased the Project from Teck Resources Limited on January 14, 2015. As a single-project entity, BMC's only asset is the Project. The YESAA Process [ 20 ] YESAA , the environmental and socio-economic assessment legislation applicable to development projects proposed in the Yukon, was created as a result of the commitment in

Chapter 12 in the UFA. The purposes of YESAA are set out in s. 5(2) of the statute as follows: (

a) to provide a comprehensive, neutrally conducted assessment process applicable in Yukon; (

b) to require that, before projects are undertaken, their environmental and socio-economic effects be considered; (

c) to protect and maintain environmental quality and heritage resources; (

d) to protect and promote the well-being of Yukon Indian persons and their societies and Yukon residents generally, as well as the interests of other Canadians; (

e) to ensure that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities and their residents, and societies in general, depend; (

f) to recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment; (

g) to guarantee opportunities for the participation of Yukon Indian persons - and to make use of their knowledge and experience - in the assessment process;

(

h) to provide opportunities for public participation in the assessment process; (

i) to ensure that the assessment process is conducted in a timely, efficient and effective manner that avoids duplication; and (

j) to provide certainty to the extent practicable with respect to assessment procedures, including information requirements, time limits and costs to participants. [ 21 ] YESAB is comprised of an Executive Committee of three members and four other board members. Three board members, including one Executive Committee member, are appointed on the nomination of the Council of Yukon First Nations and three, including one Executive Committee member, on the nomination and appointment of the federal and territorial governments.

The Chairperson of the Board, who is also a member of the Executive Committee, is appointed by the federal minister, after consultation with the other two Executive Committee members. [ 22 ] Evaluations of a project are conducted most often by a designated office but in certain circumstances may be done by the Executive Committee or a panel of the YESAB, the arms-length body responsible for carrying out the assessment under the YESAA and its regulations.

In this case, the Project evaluation was conducted by the Executive Committee because the regulations required it. [ 23 ] The YESAA assessment is designed as a planning tool.

Once the Executive Committee has concluded its evaluation of a project, it recommends one of the following: • the project proceed without a review if it determines no significant adverse environmental or socio-economic effects; • the project proceed without a review subject to terms and conditions if the project will or is likely to have significant adverse environmental or socio-economic effects that can be mitigated by terms and conditions; • the project not be allowed to proceed and not be subject to a review if it determines the project will have or is likely to have significant adverse environmental or socio-economic effects that cannot be mitigated; • the project be referred to a review by a panel of the Board if after taking into account any mitigative measure in the project proposal, it cannot determine whether the project will have or is likely to have significant adverse environmental or socio-economic effects (s. 58(1)). [ 24 ] The YESAB provides their recommendation to a decision body under YESAA .

A decision body is an entity that must issue a regulatory authorization in order for a project to proceed. It may be a territorial minister or agency, a First Nation, or a federal minister or agency, and it must issue a decision document that accepts, rejects, or varies the YESAB recommendation. The decision document is a form document designed to meet YESAA requirements.

It outlines the decision and the reasons for rejecting or varying any recommendation, including recommended terms and conditions ( s. 75 of YESAA ). [ 25 ] A decision body considering a recommendation in respect of a project is required to give full and fair consideration to scientific information, traditional knowledge, and other information provided with the recommendation ( s. 74(1) of YESAA ).

There is a statutory obligation on a decision body to consult with a First Nation without a Final Agreement (such as RRDC and LFN) about significant socio- economic and environmental adverse effects of a proposed project in the First Nation’s traditional territory ( s. 74(2) of YESAA ). Thus in this case, the Decision Bodies were under a statutory obligation to consult with the Kaska under YESAA , in addition to the constitutional obligation to consult them at common law. [ 26 ]

Section 3 of YESAA defines consultation: Where, in relation to any matter, a reference is made in this Act to consultation, the duty to consult shall be exercised (

a) by providing, to the party to be consulted, (

i) notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter,

(ii) a reasonable period for the party to prepare its views, and (iii) an opportunity to present its views to the party having the duty to consult; and (

b) by considering, fully and fairly, any views so presented. [ 27 ]

Section 75 requires a decision body to issue a decision document within the prescribed period, set as 30 days with the possibility of a seven-day extension. [ 28 ] A chart attached as Appendix A prepared by and publicly available from YESAB sets out the time stages and time frames for Executive Committee review and recommendation. [ 29 ] In this case, 1,916 days passed between the date BMC submitted its Project proposal to YESAB and the issuance of the Decision Document in June 2022.

Extensions to the various participants at various stages in the process were granted as follows: • BMC – from January 16, 2020, to January 30, 2020; • BMC – from January 30, 2020, to February 12, 2020; • LFN – from February 14, 2020, to May 31, 2020; • Decision Bodies to facilitate Kaska consultation at RRDC’s request – from December 11, 2020, to January 22, 2021; • Decision Bodies to facilitate Kaska consultation – from 37 days after March 29, 2021, to June 15, 2022.

Crown Consultation Approach [ 30 ] Both governments wrote to LFN and RRDC in the early days of the Project proposal to advise them they would be relying, to the extent possible, on the assessment process under YESAA to assist in their duty to consult. The Yukon government requested comments or feedback from the First Nations to be provided to them or YESAB about this approach and received none. [ 31 ] There were three reasons for relying on the YESAA process to assist in the Crown consultation obligations:

a) the YESAA process is designed to consider the potential adverse environmental and socio-economic effects of a project in addition to the interests, perspectives, and views of First Nations. While YESAB does not directly assess or make findings about a project’s impacts on asserted or established Aboriginal or Final Agreement rights, those rights help to inform or guide the choice of Valued Environmental and Socio-economic Components (“VESECs”) used in a YESAB assessment. The rights also provide relevant context to determining the significance of likely adverse effects on identified VESECs;

b) the direct participation of Indigenous people in the YESAA process is a significant component of the assessment, especially given the stated purposes of the statute to protect and promote the well-being of Yukon Indian persons, to guarantee opportunities for their participation, and to make use of their knowledge and experience in the assessment process; and

c) the assessment process includes the submission of a detailed project proposal, supplementary information requests, public comment periods, exchange of information among all parties, and opportunities for First Nations to raise concerns directly to the Executive Committee during the stages of adequacy and screening. [ 32 ] In addition to relying on the procedural aspects of the YESAA process, particularly to obtain information – technical and otherwise – about the Project and its potential adverse effects, both governments advised Kaska they would consult directly with them.

This consultation included ensuring the Decision Bodies understood First Nation concerns about the Project adversely affecting their asserted rights and title and the possibility of mitigating those concerns, as well as addressing concerns or questions about the assessment process, including the legislative framework, and the consultation process. [ 33 ] The information provided to YESAB for this Project assessment occurred over a five-year period and consisted of almost 20,000 pages of documents. All documents were posted publicly and available for comment.

These included 49 technical reports related to wildlife, water, and closure of the proposed mine. There were also many other letters and submissions from RRDC, LFN, Liard Aboriginal Women’s Society, Health Canada, Environment and Climate Change Canada (“ECCC”), Yukon, Natural Resources Canada, CanNor, and BMC. BMC also responded to six information requests from the Executive Committee. Some of those responses were over 800 pages long. Comments on the BMC responses were provided by various groups.

[ 34 ] The federal Decision Bodies and CanNor’s consultation and engagement with Kaska during this time was summarized in the Crown Consultation Assessment Report (“CCAR”), prepared by CanNor in collaboration with the Decision Bodies. Generally, a CCAR is an internal document prepared to assist federal decision-makers in their decision-making in relation to a specific project, and in the North is not shared outside of the federal Crown: such reports are treated as confidential. It contained a

summary of the First Nations participation in the assessment process; a

summary of Canada’s consultation and engagement with the First Nations; the record showing the consultation and engagement; a document tracking the issues raised by the First Nations called Indigenous Issues Tracker; and a

summary of BMC’s engagement with the First Nations. The Issues Tracker was shared with Kaska on a regular basis during the assessment and consultation process. Funding to Kaska [ 35 ] RRDC and LFN received or were offered funding from several sources to assist in their participation in the Project assessment and consultation in general. The following is a

summary: [ 36 ] Federal Funding: • $260,000 annually to each of RRDC and LFN to assist in any Project assessments under YESAA , to be allocated at the discretion of the First Nation; • $150,000 to LFN from the Northern Participant Funding Program for Project assessment 2019-20; RRDC did not submit a funding application for this funding although they were offered assistance with application process; and • $108,154.45 to Liard Aboriginal Women’s Society from the Northern Participant Funding Program for Project assessment 2019-20. [ 37 ] Yukon Funding: • $150,000 to be used by LFN for logistical and administrative support during assessment and regulatory stages of Project – $10,000 provided in September 2019 and the remaining $140,000 to be paid in accordance with workplan and budget to be provided by LFN; after three extensions, the agreement to fund expired without a request from LFN for the remaining $140,000; and • $270,000 offered to RRDC to cover expenses in 2021-22 fiscal year including consultation and engagement on major projects – $232,624.22 provided to RRDC with the remainder available but unused. [ 38 ] BMC Funding: • BMC committed over $880,000 but not all was used; • $387,750 for three services agreements with Dena Cho Environmental and Remediation Inc. (“Dena Cho”), a 100% owned RRDC environmental consulting company to review the Project and provide input to BMC on management plans; • $41,000 to fund a work plan designed by RRDC to gather and prepare traditional knowledge for BMC; • $413,425 committed to LFN to conduct a Kaska-Centric review of the Project - $206,000 paid in August 2019 and LFN confirmed it had adequate funds for this purpose in January 2020; and • Up to $210,000 offered to RRDC and LFN on March 24, 2021, to develop a caribou management plan and/or for negotiations to amend or modernize the Socio-Economic Participation Agreement; no response to this offer received from Kaska.

Procedural History [ 39 ] The decision being judicially reviewed was jointly made by the three Decision Bodies - Yukon government, NRCan, and DFO - on June 15, 2022, as required by YESAA after the Executive Committee issued their Screening Report. The decision allowed the Project to proceed to the regulatory processing stage. It contained 38 terms and conditions and two monitoring measures directed primarily to BMC and to the Yukon government. The general process by which this decision was arrived at is as follows. [ 40 ] The Project proposal was submitted by BMC to the Executive Committee of YESAB in March 2017.

Before this date, and beginning in 2014, BMC spent time engaging with Kaska to explain the Project proposal and address their concerns, as required by YESAA . The assessment process in this case had five stages:

• Adequacy – March 17, 2017 – January 9, 2018 – The Executive Committee determined whether applicable rules under YESAA were complied with by the proponent in its submission of the Project proposal. • Screening – January 9, 2018 – October 21, 2020 – Draft and Final Screening Reports prepared by the Executive Committee after review and evaluation of all information and views submitted.

On October 21, 2020, the Executive Committee set out their recommendation in a Screening Report that the Project proceed subject to specified terms and conditions for the purpose of mitigating potential adverse effects. • First Decision – October 21, 2020 – January 30, 2021 – Decision required from the Decision Bodies either accepting the recommendation of the Executive Committee in a decision document, or referring it for reconsideration to the Executive Committee, or to a panel of YESAB for review.

On January 22, 2021, federal Decision Bodies referred the recommendation to the Executive Committee for reconsideration because:

i) there was insufficient explanation of the supporting analysis as to why the recommended mitigation measures would sufficiently eliminate, control, or mitigate the associated significant adverse effects; and ii) there was insufficient explanation of how First Nation interests, including from a rights perspective, were considered within the analysis in the recommendation. • Reconsideration – February 1, 2021 – March 29, 2021 – The Executive Committee reconsidered its recommendation and requested, received, and reviewed new information provided during that period, including nine documents recording engagement by or communications with Kaska in the areas of potential impacts of the Project on Kaska rights and the FCH on the basis of traditional knowledge.

There were also multiple communications from the community. On March 29, 2021, the Executive Committee concluded it could not issue a new recommendation within the time period prescribed by YESAA , because the four members were deadlocked 2-2. Three Executive Committee members had initially conducted an evaluation of the Project and issued a Screening Report. A fourth Executive Committee member was appointed and added to the group who issued the Referral Conclusion.

The four-member Executive Committee was unanimous that the proposed Project would result in significant adverse effects, but did not agree on whether those effects could be adequately mitigated by the application of terms and conditions such that they would no longer be likely adverse and significant.

As a result, under s. 77(2) of YESAA , the Executive Committee was deemed to have made the same recommendation as set out in the Screening Report of October 21, 2020, before the reconsideration request had been made. • Second Decision – March 29, 2021 – June 15, 2022 – Decision Bodies were required ( s. 77(3) of YESAA ) to issue a decision document accepting, rejecting, or varying the recommendation. The YESAA regulations/rules prescribed a time period of 30 days plus a possible extension of seven days for a decision.

On June 15, 2022, more than 14 months after the Executive Committee Referral Conclusion, the Decision Bodies issued the Decision Document, the subject of this judicial review. This was done after RRDC and LFN submitted a 26-page letter with 22 pages of appendices on June 14, 2022. [ 41 ] Throughout this five-year time period there was a large amount of information exchanged and provided to the Executive Committee. Many meetings were held amongst the various stakeholders, including First Nations.

There were multiple emails and other correspondence exchanged amongst the stakeholders and provided to the Executive Committee in order to complete the required assessments, recommendations, and decisions at each stage.

The sheer volume of that information and correspondence is evidenced from the 33-page chronology prepared by the Attorney General of Canada of the key events and communications, based on all of the source documents produced in this proceeding. [ 42 ] For the purpose of this decision, I will include in the analysis portion factual summaries relevant to the issues raised by the petitioner including reference as necessary to documents and meetings. I have read and considered each party’s description of the procedural history in their affidavits and outlines in coming to my decision.

Role of BMC [ 43 ] The petitioner objects to the Court’s consideration of BMC’s involvement with Kaska. The petitioner says BMC’s submissions about their engagement with Kaska and any documents in support cannot be relied on in any assessment of the duty to consult and accommodate because the Crown did not delegate any consultation responsibilities to BMC. [ 44 ] I agree with BMC’s response to this objection that information about BMC’s engagement with Kaska is relevant context to be considered by this Court in assessing adequacy of consultation.

Early engagement by BMC with Kaska about the Project provided the First Nations with valuable and necessary information that facilitated the Crown consultation process. BMC also provided significant funding to Kaska enabling them to submit Kaska-Centric Independent Peer Reviews (“KCIPR”) during the assessment process; allowing Dena Cho to review the Project; and allowing Kaska participation, including Liard Aboriginal Women’s Society, in the Project assessment.

[ 45 ] The engagement of BMC with First Nations is also required by statute. YESAA mandates the proponent to consult with First Nations in whose traditional territory the project will be located; and for YESAB to be satisfied that this has been done. YESAB must also be satisfied that the proponent has taken into account the significance of environmental or socio-economic effects of the Project.

YESAA further requires that the proponent take into consideration alternatives or mitigations that may avoid, minimize or compensate for significant adverse environmental or socio-economic effects; in addition to considering the need to protect the rights of Yukon First Nations under Final Agreements (not relevant here), the special relationship between Yukon First Nations and the wilderness environment of the Yukon, and the cultures, traditions, health and lifestyles of Yukon First Nations and other Yukon residents ( ss. 50(2) , (3) , and 42 of YESAA ) . [ 46 ] As part of the assessment process, the engagement of BMC with Kaska was known to the Decision Bodies because of their reliance on the assessment process for some of the procedural aspects of consultation. [ 47 ] Documents submitted by BMC on this judicial review that were not part of the YESAB registry, are still admissible as part of the background and context to this petition ( Delios v Canada , 2015 FCA 117 at para. 44 ).

Understanding the scope and type of engagement between BMC and Kaska is relevant to the Crown consultation process because it shows some of the information and assistance available to Kaska for the purposes of consultation.

Summary of Decision Under Review [ 48 ] The Decision Document issued jointly on June 15, 2022, stated the Decision Bodies agreed with the Executive Committee’s recommendation that the Project be allowed to continue to the regulatory processing stage without a review. However, they made changes and additions to the terms and conditions recommended by the Executive Committee. The Decision Document was 46 pages with a seven-page appendix.

It summarized Crown consultation with Kaska and referenced issues raised in the June 14, 2022 Kaska submission 10 times. [ 49 ] The Decision Document proposed 38 conditions: 25 of which were recommended in the Screening Report and accepted by the Decision Bodies; five of which were varied by the Decision Bodies from those set out in the Screening Report; and eight of which were new conditions added by the Decision Bodies. The Decision Document addressed the key substantive issues by listing them, summarizing the potential effects, and setting out the mitigation measures to address the potential effects.

Those issues were: FCH; water resources and aquatic life; air quality; traditional land use; economic feasibility of the Project; cumulative effects; and personal safety and well-being. [ 50 ] The new and modified terms and conditions related to water quality, air quality, caribou effects monitoring and effluent standards, and included extensive mitigation measures for the FCH (see Appendix B). ISSUES [ 51 ] The first issue is whether Yukon and Canada failed to consult Kaska reasonably and accommodate them by not engaging in a meaningful two-way dialogue in the following ways:

i) failed to consult on all possible decision outcomes on the Project and instead consulted only on varying the terms and conditions; ii) improperly narrowed the scope of consultation by:

a) focussing disproportionately on impacts to the FCH to the exclusion of other Kaska concerns;

b) did not adequately consider the impact of the Project on cumulative effects;

c) failed to consider Kaska-led parallel assessment processes, that would fill in the gaps of the YESAA assessment process;

d) failed to consult meaningfully on Kaska jurisdiction and legal orders; and

e) failed to consider the input of Kaska Elders and in particular the conditions developed for the Project by Elders in 2017; iii) failed to consider and meaningfully grapple with the June 14, 2022 submission by RRDC and LFN; and iv) improperly deferred consultation to the regulatory phase of the Project, after YESAA approval. [ 52 ] The second issue is whether Yukon and Canada breached the duty of procedural fairness owed to Kaska by:

i) imposing an arbitrary decision date of June 15, 2022; ii) failing to take adequate time to fully and fairly consider the June 14 submission; and iii) subjecting the June 14 submission to a rushed and unfair review process. [ 53 ] The Decision Document was issued jointly and for the most part all three Decision Bodies were engaged in the consultation processes at the relevant times. Although the record shows some differences in the numbers and types of meetings and other correspondence between Kaska and each of Canada and Yukon, the petitioner has not differentiated between them. I will not do so either. LEGAL PRINCIPLES

Nature of Judicial Review and Standard of Review [ 54 ] Judicial review is an exercise of the court’s supervisory function, to ensure that decision-makers act within the scope of their delegated authority. The Supreme Court of Canada summarized the role of the court aptly in Dunsmuir v New Brunswick , 2008 SCC 9 (“ Dunsmuir ”) at para. 28 : By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.

Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.

The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [emphasis added] [ 55 ] Although the Supreme Court of Canada revised the framework for determining the standard of review and the conduct of reasonableness review in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 (“ Vavilov ”), that decision did not override the principles underlying judicial review articulated in Dunsmuir – broadly stated, “that judicial review functions to maintain the rule of law while giving effect to legislative intent” ( Vavilov at para. 2 ). [ 56 ] The presumptive standard of review in a judicial review is reasonableness ( Vavilov at paras. 23-32 ).

The parties in this case agree that the standard of review here is reasonableness. The Supreme Court of Canada in Vavilov identified certain exceptions to the reasonableness standard, none of which applies here. The issues on judicial review involve an assessment of the adequacy of consultation and accommodation as well as whether there was procedural fairness. The correctness standard applies to a review of the legal questions of the existence, extent, and content of the duty to consult. These are not a matter of dispute in this case.

All parties agree that Yukon and Canada have an obligation to consult Kaska about their conduct in issuing authorizations for the Project and that deep consultation is required. [ 57 ] Reasonableness requires that a reviewing court not substitute its decision for that of the administrative decision-maker, but instead ensures the reasoning process and the outcome are transparent, intelligible, and justified ( Vavilov at para. 15 ).

As stated by the Supreme Court of Canada in Vavilov at para. 83 : It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. … Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [emphasis in original] [ 58 ] In the assessment of reasonableness, context is important and may constrain whether a decision is reasonable.

Reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision making involved and all relevant factors” ( Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para. 59 ; Catalyst Paper Corp. v North Cowichan (District) , 2012 SCC 2 (“ Catalyst ”) at para. 18 ).

In other words, the circumstances, considerations, and factors in particular cases influence how courts go about assessing the acceptability and defensibility of administrative decisions ( Catalyst at para. 18 ; Doré v Barreau du Québec , 2012 SCC 12 at para. 54 ; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 at para. 44 ).

An example of relevant context that informs a reasonableness review is the existence of a duty flowing from the honour of the Crown ( Redmond v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development) , 2020 BCSC 561 (“ Redmond ”) at para. 26 ; Coldwater Indian Band et al v Attorney General of Canada et al , 2020 FCA 34 (“ Coldwater ”) at para. 27 ). [ 59 ] In Vavilov , the Supreme Court emphasized that a reasonableness review is to be conducted by appreciating the decision, the reasons for it, and the context in which it was made.

This requires the reviewing court to consider the reasons offered in justification of the decision in light of the evidentiary record ( Coldwater at para. 31 ). Duty to Consult [ 60 ] In this case, an assessment of the reasonableness of the decision requires an understanding of the duty to consult, as this is a significant part of the context of the decision at issue.

Before a decision of this kind can be made, the Decision Bodies had to fulfill their common law duty to consult Kaska emanating from the honour of the Crown, as well as their statutory duty to consult Kaska under YESAA . [ 61 ] The common law duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” ( Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 (“ Haida Nation ”) at para. 35 ).

In this case, the decision under review is Crown conduct that may adversely affect actual Kaska rights, of which the Decision Bodies have knowledge. [ 62 ] The duty to consult with Aboriginal peoples and if necessary, accommodate their interests, is justiciable and grounded in the honour of the Crown. The achievement of reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown requires the Crown to act honourably in all its dealings with Aboriginal peoples ( Haida Nation at paras. 16-17 ).

The duty to consult, in turn, seeks to protect Aboriginal and treaty rights while furthering reconciliation between Indigenous peoples and the Crown ( Rio Tinto Alcan Inc v Carrier Sekani Tribal Council , 2010 SCC 43 ). [ 63 ] Here, the parties are agreed that the level of consultation owed by the Crown to Kaska is deep. Deep consultation is required

because of the Kaska asserted rights and territory, the proximity of the Project to Kaska communities and the scope of the Project. The duty of deep consultation includes the requirements to discuss the consultation process, including whether there is a need for community consultation; to meet in good faith with an open mind to discuss issues and concerns raised; to seriously consider the concerns raised; to make efforts to mitigate in an attempt to minimize adverse impacts; and to advise of the course of action taken and why.

Deep consultation requires written explanations capable of showing that the Indigenous group’s concerns were duly considered and sufficient to reveal the impact they had on the decision ( Haida Nation at para. 44 ).

It is not the quantity but the quality of consultation that determines the substance of the depth of consultation ( Kwikwetlem First Nation v British Columbia (Utilities Commission) , 2009 BCCA 68 at paras. 66-70 ). [ 64 ] The Court in Tsleil-Waututh Nation v Canada (Attorney General) , 2018 FCA 153 (“ Tsleil-Waututh Nation "), stated at para. 499 : Meaningful consultation is not intended simply to allow Indigenous peoples “to blow off steam” before the Crown proceeds to do what it always intended to do.

Consultation is meaningless when it excludes from the outset any form of accommodation ( Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) , 2005 SCC 69 , [2005] 3 S.C.R. 388, paragraph 54 ). [ 65 ] The Court went on to state at para 501: … [M]eaningful consultation is not just a process of exchanging information. Meaningful consultation “entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback.” Where deep consultation is required, a dialogue must ensue that leads to a demonstrably serious consideration of accommodation.

This serious consideration may be demonstrated in the Crown’s consultation-related duty to provide written reasons for the Crown’s decision. [ 66 ] The consultation process does not require agreement or a particular outcome. The Crown is required to act in good faith to provide meaningful consultation, not a specified result ( Haida Nation at para. 42 ; Squamish First Nation v Canada (Fisheries and Oceans), 2019 FCA 216 at para. 37 ) . [ 67 ] Good faith is required by both Crown and Indigenous participants in the consultation process.

Indigenous claimants must not frustrate the Crown’s reasonable good faith consultation attempts, nor should they take unreasonable positions to thwart government from making decisions where agreement is not reached despite meaningful consultation ( Haida Nation at para. 42 ).

The duty to consult and, if appropriate, accommodate an Aboriginal right or interest is a two-way street ( Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) , 2017 SCC 54 (“ Ktunaxa Nation ”) at para. 80 ). [ 68 ] Part of the two-way street requires that all participants in a consultation process act diligently to advance their respective interests in a timely way as issues arise ( Coldwater at para. 55 ). [ 69 ] The duty to consult and, if appropriate, accommodate Aboriginal interests may require the alteration of a proposed development.

Accommodation plays a role when an Indigenous group asserts a project should not proceed. However, it does not give Indigenous groups a veto over the proposed activity. Consent is required only for proven claims, and even then only in certain cases. What is required is a balancing of interests, a process of give and take ( Redmond at paras. 45 and 48-50 ).

The Supreme Court of Canada in Ktunaxa Nation , stated at para 83 : The s. 35 obligation to consult and accommodate regarding unproven claims is a right to a process, not to a particular outcome. … While the hope is always that s. 35 consultation will lead to agreement and reconciliation of Aboriginal and non-Aboriginal interests, Haida Nation makes clear that in some situations this may not occur, and that s. 35 does not give unsatisfied claimants a veto over development.

Where adequate consultation has occurred, a development may proceed without the consent of an Indigenous group. [ 70 ] The court in Redmond described the balancing required where an Indigenous group does not want a project to proceed at para. 48: Ultimately, the duty to consult is a process of “give and take.” Depending on the factual matrix before an administrative decision maker, sometimes this “process of balancing” inherent in the consultation process leads to the approval of a project over a First Nation’s outstanding concerns regarding its impacts on their spiritual practices: … However, sometimes, as is the case here, it will be reasonable for a decision maker to take a different path: Haida , para. 48.

Ultimately, “[r]easonable accommodation can include consideration of whether the project should proceed at all given its adverse impacts on Aboriginal rights:”… [citations omitted] [ 71 ] As noted above in the quote from Ktunaxa Nation , consultation and accommodation do not guarantee a particular outcome. The Court in Coldwater at para. 58 expanded on this concept: Like consultation, accommodation does not guarantee outcomes. It is an ongoing “give and take” process. One way to accommodate is to impose conditions on a project proponent, such as ongoing participation of Indigenous groups. ...

Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups. … [citations omitted] [ 72 ] Put another way, accommodation that does not meet the concerns of Indigenous groups does not necessarily mean that consultation was inadequate. The Court in Coldwater stated at para. 51 :

The process of meaningful consultation can result in various forms of accommodation.

But the failure to accommodate in any particularway, including by way of abandoning the Project, does not necessarily mean that there has been no meaningful consultation. [73] Where adequate consultation has occurred, the concerns of the Indigenous group can be balanced against “competing societalinterests” (Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41 (“Chippewas of the Thames”) at paras. 59–60;Haida Nation at para. 50; Tsleil-Waututh Nation at para. 495). [74] The Supreme Court of Canada in Haida Nation explained the standard for assessing whether the governments’ duty toconsultation and accommodate was met: [62] … Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole,accommodates the collective aboriginal right in question”: [R. v.

Gladstone, (SCC), [1996] 2 S.C.R. 723, at paragraph170]. What is required is not perfection, but reasonableness. As stated in [R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013, atparagraph 110], “in [the aspects of] information and consultation the concept of reasonableness must come into play. ... So long as everyreasonable effort is made to inform and to consult, such efforts would suffice.” … ISSUE #1:

i) Failure to consult meaningfully on all decision outcomes Introduction [75] The petitioner argues that the Decision Bodies focussed on the option of varying the recommendations in the Screening Reportthrough adding and modifying terms and conditions to the exclusion of other outcomes, and in particular, the outcome of rejection of theProject proposal.

This focus of the consultation on approval of the Project to the next stage without considering the possibility that theProject could not proceed showed a failure to grapple fully with Kaska concerns. [76] The Decision Bodies say all options remained open for consideration throughout the consultation period, including rejection ofthe recommendations in the Screening Report, and this was communicated repeatedly to the petitioner. Their preference to vary theterms and conditions was also openly stated. They unsuccessfully sought feedback on those modified terms and conditions from Kaskafor many months.

The responses and input of Kaska were expected to help the Decision Bodies assess whether the proposed mitigationswere sufficient to address Kaska concerns. The Decision Bodies wanted that feedback first, in order to assess the usefulness of theproposed mitigations, before considering the rejection option. They did not receive specific feedback on the mitigations until thesubmission of June 14, 2022. Brief Conclusion [77] The Decision Bodies did not fail to consider all outcomes. Rejection of the Project proposal remained a possibility throughout theconsultation process, up to the June 14, 2022 submission.

The explanations to Kaska of the consequences of rejection and why feedbackfrom them on the modified terms and conditions was requested before rejection was considered were reasonable. Facts [78] Before the request for reconsideration by the federal Decision Bodies and the Referral Conclusion indicating a deadlockedExecutive Committee, LFN requested on January 15, 2021, that the Decision Bodies reject the Project as proposed or refer it to a panelreview because of its potential impacts to the FCH and Aboriginal rights.

After further consultation with LFN and RRDC, the federalDecision Bodies referred the Screening Report recommendation to the Executive Committee for reconsideration on January 22, 2021. [79] The Executive Committee Referral Conclusion, issued on March 29, 2021, stated that two of the four Executive Committeemembers were of the view that mitigations through terms and conditions could not sufficiently address the potential significant adverseeffects of the Project, given the importance of the KZK Lands to Kaska and their asserted rights. They would not have recommendedapproval of the Project.

The other two Executive Committee members also found the Project would have potential significant adverseeffects, but they could be adequately mitigated through terms and conditions. They would have recommended approval of the Project.They wrote in the Referral Conclusion: “The primary point of divergence between members was whether information received duringthe referral period was compelling and novel or largely reiterates and overlaps with previously submitted information”.

The failure of theExecutive Committee to agree on a recommendation meant that none was issued during the prescribed time period and the originalrecommendation in the Screening Report was deemed to have been made (s. 77(2) of YESAA). [80] RRDC and LFN again raised the option of rejection of the Project as proposed after this Referral Conclusion, in writing and inmeetings. During a meeting on April 9, 2021, LFN said it wanted to talk about all potential decision options, including a public panelreview if appropriate.

The federal Decision Bodies responded that a panel would add time to the review process and they had notdiscussed this possibility in any detail. [81] On April 28, 2021, the Chiefs requested the Decision Bodies reject the recommendations in the Screening Report for reasonsrelated to “the assessment process, the location of the Project, the sensitive nature of the Finlayson Caribou Herd (FCH), the significantcumulative effects, and the obvious deficiencies in the mitigation measures, which we view as insurmountable”.

In that letter, the Chiefsalso stated that a panel was no longer a viable option because it would revisit a project “already been revealed to be fundamentallyflawed”. They also assumed that a rejection would result in the submission by the company of a new, redesigned project, which wouldallow proper consultation and accommodation to occur. [82] In response, the Decision Bodies, by letter of July 5, 2021, requested a meeting with the Chiefs to discuss how variations to therecommended terms and conditions they had been considering could adequately address Kaska concerns. A follow up letter was sent on

July 16, 2021, after no response was received to the July 5 letter. [ 83 ] By letter dated August 3, 2021, LFN agreed to meet to discuss proposals for varying the recommendations and options, but stated it was inappropriate for the Chiefs to meet with technical representatives of Decision Bodies. LFN advised they would assemble an appropriate team of technical experts for the meeting.

They requested the Decision Bodies provide LFN with an outline and draft language of the proposed varying terms and conditions sufficiently in advance of the meeting for LFN to do its internal review. [ 84 ] As requested, the draft of the modified terms and conditions was sent by the Decision Bodies to LFN by letter dated September 21, 2021, and to RRDC by letter dated October 5, 2021.

Between October 5, 2021, and December 17, 2021, approximately 13 emails and letters were exchanged between the Decision Bodies and LFN and RRDC in unsuccessful attempts to set up a meeting to discuss the modifications. [ 85 ] Finally, they met on January 13, 2022. They discussed capacity issues of the First Nations, the Chiefs’ April 28, 2021 letter, cumulative effects in general terms, and the next steps in the process. The meeting was intended to discuss the modified terms and conditions but the time allotted was insufficient.

The First Nations repeatedly asked at the meeting for a response to the Chiefs’ letter proposing rejection of the Project, whether the process they suggested for the next steps after rejection would be followed and its effect. [ 86 ] The Decision Bodies and CanNor explained at the meeting that if the Project were rejected, it would not proceed to the regulators, so no permits or licences would be issued for the Project. It would then be BMC’s decision whether to proceed in a different way, such as by submitting a new project proposal for assessment.

If a new proposal were prepared and submitted to YESAB, the assessor would consider whether it was a new project, that is, whether there was a material change from the rejected Project proposal, as YESAB cannot re-assess the same project. [ 87 ] The Decision Bodies and CanNor further explained that the modified terms and conditions they developed were an effort to address the concerns raised about the Project and the FCH by Kaska.

They stated: • [The] modified terms were to hopefully improve what was put on the table to enable a broad consideration of all options before the regulators. • Further discussions are important for Canada to make a decision, including whether there is sufficient information to continue moving forward. • If the ultimate answer is that they are still unable to proceed given that mitigation measures are not sufficient to enable Kaska to provide consent - that puts them on a decision path for rejection/varying/approving. [ 88 ] The Decision Bodies asked several times at the January 13 meeting for initial feedback on those terms and conditions.

No feedback was forthcoming, even though technical experts consulting to the First Nations were present at the meeting. Instead, the focus of the First Nations continued to be on the failure of the Decision Bodies to respond to the Chiefs’ letter proposing rejection and the process to follow.

The Decision Bodies stated at that meeting their preferred approach at that time was to vary the recommendation, but that all options were still available, pending the receipt of Kaska comments on the modified terms and conditions. [ 89 ] On January 24, 2022, the Decision Bodies wrote to LFN and RRDC confirming they had not yet decided whether rejecting or varying would be the final decision. They confirmed that if rejection were chosen, it could not be assumed that BMC would choose to redesign and submit a new proposal.

They repeated they preferred the proposed modifications as a way to address Kaska concerns related to the Project, specifically the FCH, cumulative effects and water quality. They requested a series of focussed meetings in January and February to determine whether further modifications could address concerns and stated they hoped to move forward with a decision in late February 2022.

They concluded: Ultimately, Decision Bodies are seeking to understand if LFN and RRDC continue to have concerns and the nature of those concerns, including whether Kaska Chiefs continue to recommend that the Project be rejected. [ 90 ] LFN and RRDC responded by letter dated January 28, 2022, with a number of questions about reconciliation, the meaning of deep consultation, cumulative effects, and mine feasibility. They referenced again the “path forward” provided by the Chiefs in their April 28, 2021 letter, that is, rejection of the current Project and discussion about a newly designed project.

In response, the Decision Bodies by letter on February 16, 2022, repeated much of what had been written in the January 24, 2022 letter. They again requested consultation meetings to discuss the draft modified terms and conditions and associated information package that provided explanations, implementation information, caribou data and science information. LFN responded that the proposed meeting dates did not work for LFN and RRDC and they would propose a new date. [ 91 ] On February 24, 2022, the Decision Bodies wrote to acknowledge the competing priorities and other capacity issues of the First Nations.

They confirmed they would not make a decision at the end of February as they had hoped but would work towards a decision in March. They further stated they looked forward to discussion of the decision phase consultation and responses to Kaska questions about reconciliation and other matters; presentation and discussion of Kaska views on the draft terms and conditions; and discussion of additional consultation meetings. [ 92 ] After one cancellation of a scheduled meeting on March 10, 2022, because of an RRDC election, the meeting was held on March

30, 2022. At that meeting, the Decision Bodies repeated the vary decision was their preferred option, that rejection was still available, and no decision had been made. This was stated several times. Tracey Sandgathe of DFO said that “any discussion about a reject of the Project must be focused on the question of whether or not the Project will have significant effects, and whether or not [Decision Bodies] agree or disagree that those effects can be mitigated”.

Rinaldo Jeanty of NRCan responded to the repeated comments by LFN and RRDC that the terms and conditions had been developed unfairly behind closed doors saying: … The intent was to take information provided by Kaska on the record since the beginning of the assessment process. It has never been absent of considering the views we’ve heard on the record throughout this entire process. What we’re trying to do now … is to seek feedback directly related to the [terms and conditions] to make a determination together on whether what we’re proposing is responsive enough to what we have heard.

The characterization of closed-door decisions without the input of Kaska is not reflective of the reality that transpired. The [terms and conditions] were developed with the views heard on the record and we did the best we could to reflect these in the modified [terms and conditions]. Now through consultation we’re trying to make sure we continue to listen and ask if there is room to improve or if there is misinterpretation of how we’ve tried to respond to the concerns on the record. [ 93 ] The Decision Bodies confirmed at the March 30, 2022 meeting they had two preferred options.

They wanted confirmation that the Kaska preferred option was reject. They suggested that modified terms and conditions be used as a starting point for the variation of the recommendation and “if we are considering the option for reject, that decision would need to be informed by why there are not mitigations available that would mitigate significant adverse effects and what we would need to consider …”. They asked again for Kaska’s views and reactions on the modified terms and conditions as that would help them understand they could not proceed with them and perhaps the panel would be the best option.

They also asked questions to Kaska about a panel review. [ 94 ] The First Nations responded at one point “Kaska are not here to discuss the terms and conditions. They are here to discuss what is the information missing and what is the path forward, given that missing information”. They repeated several times there was missing information. [ 95 ] On April 27, 2022, the Decision Bodies sent another letter with attachments related to the FCH, mine economics and the regulatory process.

They invited RRDC and LFN to another meeting to discuss the draft new and modified terms and conditions, as well as the information in the letter and attachments. They repeated that the Decision Bodies were considering the option to vary, although a final decision had not been made and they wanted to consult with LFN and RRDC about a Project decision, inclusive of terms and conditions and supporting rationale.

The Decision Bodies invited RRDC and LFN to two half-day meetings between May 17 and 19, 2022, to discuss the proposed draft terms and conditions, mine economics and the regulatory process, and the effects on the FCH and whether those could be mitigated through terms and conditions. No response was received until LFN sent emails dated May 10 and 20, 2022, asking for dates in June or July for a meeting. [ 96 ] On May 25, 2022, the Decision Bodies sent another letter to Kaska indicating their intention to make a decision by June 15, 2022.

The letter also stated they intended for the Project to proceed subject to the modified terms and conditions, but they still wanted to meet with Kaska, get their views and receive any information they wished to send.

The letter contained information on further changes to the terms and conditions to incorporate advice they had received from ECCC, as well as commitments to continue consultation throughout the regulatory phase and life of the Project, including implementation of the terms and conditions. [ 97 ] A meeting occurred on June 8, 2022, attended by the Decision Bodies, representatives from ECCC, the Chief of RRDC, officials from RRDC and LFN, legal counsel, and technical expert advisers to LFN.

The First Nations had questions about the information from ECCC on the risk characterization of the FCH and all parties wanted to discuss next steps. One of the LFN technical consultants said they had questions on the modified terms and conditions and there was some discussion around those terms generally. The Decision Bodies stated several times that they intended to issue a decision on June 15, 2022, that the Project proceed to the regulatory stage, but they would take into account any new information supplied by the First Nations and it would inform their decision.

Any information from the First Nations received after June 15 would help inform further consultations throughout the regulatory stage. Analysis [ 98 ] The petitioner argues that the Decision Bodies failed to grapple with Kaska concerns and consider potential outcomes other than approval to proceed on varied terms and conditions. Specifically, the petitioner says they did not consider whether the Project should not proceed at all, given its adverse impacts on Kaska rights.

The petitioner argues, based on West Moberly First Nations v British Columbia (Chief Inspector of Mines) , 2011 BCCA 247 (“ West Moberly ”) at para. 144 , that reasonable consultation requires that not only had the Kaska position on rejection “been fully considered, but that there were persuasive reasons why the course of action the petitioners proposed was either not necessary, was impractical, or was otherwise unreasonable…”. [ 99 ] The Decision Bodies were clear from July 2021 onwards that their preferred path was approval with varied terms and conditions.

However, this position was not categorical, even up to May 25, 2022, when they announced their intention to make a decision on June 15, 2022. Until that date, the Decision Bodies stated repeatedly in letters and at meetings that all options except “accept” remained open. They addressed the First Nations’ position that the proposed Project be rejected by explaining the consequences: it would not proceed to the regulatory stage and there was no guarantee that BMC would make another proposal or even if it did that YESAB would accept it as a new project.

The Decision Bodies also explained several times they wanted to hear views from Kaska on the modified terms and conditions first, as that would inform them about whether mitigation of the adverse effects was possible. If not, then rejection would have to be considered. [ 100 ] The multiple attempts of the Decision Bodies to obtain substantive responses from the First Nations to the modified terms and conditions was a reasonable approach to consultation.

That information would assist them in determining a path forward – whether that involved acceptance of the proposed mitigations, further modifications, or the possibility of rejection of the Project. [ 101 ] This case is not analogous to West Moberly . In that case, the decision-maker approved a coal mining project that would impact adversely the Burnt Pine caribou herd, the population of which was 11, and which the West Moberly First Nation had refrained from

harvesting for the previous 40 years because of its precarious state. The decision-maker based its decision on the company’s “caribou mitigation and monitoring plan” in the face of the First Nations’ expressed concerns, which were supported by the government’s expert biologist.

No explanation was provided to the First Nation of the rationale for the decision to approve, or why rejection of the project was unnecessary, impractical or otherwise unreasonable. [ 102 ] Here, the modified terms and conditions with explanations, rationale, and supporting documents were provided to the First Nations in September and October 2021. The First Nations’ complaint that the modified terms and conditions had been developed unilaterally and “behind closed doors” was unreasonable. The Decision Bodies invited the Chiefs to discuss the development of the modifications in their letter of July 5, 2021.

This invitation was rejected because of the inappropriateness of Chiefs meeting with technical representatives. The First Nations did not, however, suggest a meeting between the technical representatives. Instead, they requested the Decision Bodies send the draft modified terms and conditions to them so they could confer with experts and respond at a meeting between technical representatives. Those modified terms and conditions were sent to the First Nations as requested at the end of September and early October 2021.

They were developed on the basis of the concerns expressed by Kaska during the assessment and decision-making process and provided to them after they rejected a meeting to discuss them and asked for the draft to be sent to them. [ 103 ] Consultation meetings were attempted by CanNor and the Decision Bodies for many months to discuss the modified terms and conditions. It was difficult to get Kaska to meet. Meetings eventually held on January 13, March 30, and June 8, 2022, were unsuccessful in obtaining any substantive responses from the First Nations about the modified terms and conditions.

Nor were any Kaska responses forthcoming in writing, until the June 14, 2022 submission. Meanwhile, the Decision Bodies explained the consequences of Project rejection, and the need for Kaska feedback on the modified terms and conditions before rejection would be considered was clarified. [ 104 ] From January 2021 to mid 2022, the Chiefs consistently requested the Decision Bodies reject the proposed Project.

They were unwilling for many months to discuss in more than general terms any other possibility, despite receiving an explanation of how consultation on the proposed modified terms and conditions could lead to outcomes other than approval – i.e. rejection or a panel hearing – depending on the discussions. Those discussions could not occur because Kaska did not respond substantively on the modifications.

The Decision Document refers to the Chiefs’ position that the Project should be rejected as designed and that modifications were considered to address their concerns. [ 105 ] The duty to consult and accommodate imposes obligations on the Crown and the Aboriginal group.

This was described in Ktunaxa Nation , where the court summarized Haida Nation : [80] … • The duty to consult and, if appropriate, accommodate pending the resolution of claims is grounded in the honour of the Crown, and must be understood generously to achieve reconciliation (paras. 16-17). … • The duty to consult and, if appropriate, accommodate the Aboriginal interest is a two-way street. The obligations on the Crown are to provide notice and information on the project, and to consult with the Aboriginal group about its concerns.

The obligations on the Aboriginal group include: defining the elements of the claim with clarity (para. 36) not frustrating the Crown’s reasonable good faith attempts; and not taking unreasonable positions to thwart the Crown from making decisions or acting where, despite meaningful consultation, agreement is not reached (para. 42). [ 106 ] The Court in Coldwater elaborated on the role of the Indigenous peoples being consulted: [55] … the case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it … .

Tactical behaviour aimed at ensuring that discussions fail within the time available for consultation is not consistent with reconciliation and would, if tolerated, allow for the effective use of a veto right. [citations omitted] [ 107 ] Here, the failure of Kaska to respond substantively to the modified terms and conditions provided by the Decision Bodies in the fall of 2021 was unreasonable. It frustrated the Decision Bodies’ good faith attempts to mitigate the concerns expressed by Kaska.

It was reasonable for the Decision Bodies to want to hear the substantive response of the Kaska to the modified terms and conditions before discussing rejection fully and considering it as an option. The Decision Bodies maintained an open mind including the possibility of rejection as an option. ISSUE #1: ii) Improper narrowing of consultation Introduction [ 108 ] The petitioner argues the Decision Bodies narrowed consultation in the following ways:

a) failed to consider and consult on the full spectrum of Kaska concerns and instead focused disproportionately on the FCH;

b) did not adequately consider the impact of the Project on cumulative effects;

c) failed to consult on a Kaska-led Indigenous assessment process;

d) did not meaningfully consult on Kaska jurisdiction and legal orders; and

e) did not facilitate or consider the input of Elders or the Elders’ Conditions. Brief Conclusion

[ 109 ] The Decision Bodies did not narrow consultation as alleged by the petitioner. They were open to and did hear all concerns raised by Kaska on all issues. They attempted to address the concerns in various ways – such as by referring the YESAB Screening Report for reconsideration, and developing modifications to the terms and conditions.

a) Failed to consider and consult on all concerns of Kaska and focussed disproportionately on FCH Facts [ 110 ] The petitioner acknowledged that the adverse impacts on FCH were a key concern for them but noted that the right to hunt caribou is only “one strand in a complex web of Kaska rights, including other hunting, stewardship, and governance rights”.

More specifically, those rights are: harvesting of large game such as moose; fishing; trapping; harvesting and the use of animal pelts; harvesting of berries and plants; use of trails for seasonal travel throughout Kaska territory; protection of sacred burial sites in and around KZK Lands; trade and other commercial/economic right exercised on Project lands; the exercise of cultural and spiritual rights related to carrying out cultural activities on Project lands; and transmitting cultural knowledge specific to the Project area to maintain the continuity of Kaska culture.

The petitioner says further their concerns about the economic and financial feasibility of the mine and the impacts of the Project on the health and safety of women and girls were not substantively addressed. [ 111 ] At a consultation meeting held on April 1, 2021, just after the Referral Reconsideration was received, LFN stated “[t]he caribou issue is so important to Kaska, it is the crux of the issue with this mine as it’s proposed”. [ 112 ] The Decision Bodies heard and understood the concerns raised by Kaska about the FCH and the other issues. This is clear from the Decision Document and the record.

The issue is whether the further requirement of deep consultation was met. Was there meaningful dialogue on those issues and did the Decision Bodies consider altering the proposal in order to address the Kaska concerns? [ 113 ] The Decision Document describes the key substantive issues of the Kaska under the following headings: FCH, water resources and aquatic life, air quality, traditional land use, economic feasibility of the project, personal safety and community well-being. The Decision Document states each of these substantive issues was considered in the decision-making process.

During the consultation phase, the Yukon government on behalf of the Decision Bodies summarized the following activities as impacted by the Project: hunting; wildlife impacts; fishing; trapping; gathering plants for food and medicinal purposes; water (including quality, management, treatment and effects of toxic water on wildlife); air quality; travel and access (including to places where rights are exercised and ancient trails); traditional and current land use (including how changes could affect how rights are exercised); and cultural and spiritual concerns (including grave sites) community well-being and human health.

These were replicated in the Decision Document, which also noted many of these issues were considered by the Executive Committee and discussion continued into the decision phase of the project. [ 114 ] The Screening Report contained 30 terms and conditions. The Decision Document contained 38 modified terms and conditions – 25 of the Screening Report conditions were accepted; five were modified; and eight new ones were added. The following addresses the modifications for each of the subject areas.

Water Quality [ 115 ] The Decision Document states that the Decision Bodies modified and added new terms and conditions to provide greater clarity around the analysis, monitoring, and mitigation measures to be implemented to ensure the long-term efficacy of water treatment plans.

The Decision Document noted the Fisheries Act authorization will require the development of a detailed offsetting plan to counterbalance any residual effects to fish and fish habitat not addressed through mitigation, including a long-term monitoring plan and the provision of a bond for the full cost of implementing and monitoring the offsets.

Air Quality [ 116 ] The Decision Document set out a new term to address uncertainties in the characterization of air-quality-related health risks, confirm modelling predictions, and ensure that air quality monitoring and associated management plan requirements will be consistent with the appropriate federal and Yukon standards at the time of the Project operation.

Traditional Land Use [ 117 ] The Decision Document refers to four terms and conditions (#12-15) that ensure First Nations involvement and participation in management plans; closure objectives; monitoring programs; environmental, cultural and heritage management programs; BMC- sponsored on the land cultural activities that promote sharing of Traditional knowledge and practices during the construction and operation of the mine; and up to 14 days unpaid leave to all Yukon First Nation employees to allow them to exercise Aboriginal rights on the land and to attend culturally important events. [ 118 ] The Decision Bodies considered the LFN KCIPR memos and Interim Report that were not reviewed by the Executive Committee before it released the Screening Report.

The LFN documents informed the variations and additions to the terms and conditions related to caribou, water quality, and air quality. “The variations to the terms and conditions were made to further enable the collection, consideration and integration of Kaska traditional knowledge and traditional land use information into future regulatory processes, caribou range management and Project operations”. Health and Safety of Women and Girls [ 119 ] The Decision Document accepted without variation nine terms and conditions recommended by the Executive Committee related to safety of women and girls. They included:

• mandatory regular harassment prevention training for all BMC’s employees, contractors and consultants at the mine site; • provide training to human resources staff to assist in supporting workplace harassment reports and provide information to new employees on how to record and provide evidence of harassment and bullying as well as protection from reprisals; • mentor program for First Nation employees to assist with voicing concerns and addressing negative experiences especially related to a male-dominated work environment, with LFN and RRDC involvement in program development; • development with experts and LFN and RRDC of gender appropriate and gender and sexuality specific policies and processes to promote a safe, respectful and inclusive environment for women and gender minorities; • development with an expert of an anti-harassment and anti-bullying policy; • mental health training for short term or crisis support at the mine site for the on-site First Aid or Emergency Medical technicians; • ensure employees can use the employment assistance program services available and they know their dependents have access; • provide resources, supports, and safety plans for employees who are victims of domestic abuse; • development of standards for behaviour at work and codes of conduct to prevent sexual harassment, gender-based violence at the site and in the broader community, including distribution of education and awareness materials on gender-based violence. [ 120 ] The Decision Bodies also considered concerns brought forward by the Liard Ab

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