Authors
Calgary Managing Partner, Calgary
Associate, Disputes, Toronto
Articling Student, Toronto
Overview
In Ross River Dena Council v. Yukon (Government of),[1] the Court of Appeal of Yukon found that the Canadian and Yukon governments (the Decision Bodies) failed to adequately consult with the Kaska Nation (Kaska) on the economic feasibility of a proposed mining project on Kaska lands when approving the project. The court set aside the project approval and remitted the decision for further consultation.
The court’s decision underscores the importance of meaningful consultation with Indigenous groups and emphasizes the Crown’s duty to consult requires substantive engagement on all relevant issues raised by the Indigenous groups, including economic feasibility, before approving projects that may impact Indigenous rights.
Background: the project and the consultation process
The case centers around a proposal by BMC Minerals Ltd. (BMC) to develop a mine within the traditional territory of the Kaska (the Project). BMC brought its proposal to the Yukon Environmental and Socio-economic Assessment Board (YESAB).
The Decision Bodies relied on the process in the Yukon Environmental and Socio-economic Assessment Act (YESAA) and its regulations to assist in meeting their duty to consult.[2] In this case, this required an evaluation of the Project proposal by the Executive Committee (EC) of the YESAB. At the conclusion of this evaluation, the EC was required to choose one of four recommendations to the Decision Bodies, all turning on whether the Project was likely to have “significant adverse environmental or socio-economic effects” that can or cannot be mitigated.[3] The Decision Bodies were then required to consult with affected First Nations before either accepting the EC’s recommendation or referring it back for reconsideration.[4]
For the Project, the EC invited submissions from the public and from the Kaska, followed up with information requests, and retained independent consultant teams to advise it. Throughout this process, the Kaska raised significant concerns about the Project’s potential impacts on their traditional lands and cultural sites. The Kaska also raised specific concerns about the economic feasibility of the Project, particularly with respect to the accuracy of BMC’s financial models, economic projections and plans to pay for post-production activities. Despite these concerns, the EC recommended the Project proceed, finding that, while it would result in significant adverse effects, certain terms and conditions could mitigate those effects.
After the EC released its recommendation, the Kaska wrote to the Decision Bodies raising several concerns, including about the economic viability of the Project. The Decision Bodies suggested modified terms and conditions to mitigate certain of the Kaska’s concerns, but took the position that the economic feasibility of the Project was not relevant to the YESAA process and would be subject to consultation during the later regulatory phase of the approval process.
The Ross River Dena Council (RRDC), on behalf of the Kaska, brought an application for judicial review of the decision, arguing that the consultation process was inadequate, particularly regarding the economic feasibility of the Project and the potential for adverse effects of the Project on Kaska’s traditional territory.
Lower court’s decision
The Supreme Court of Yukon found the Decision Bodies had generally met their duty to consult and accommodate the Kaska, except for their treatment of the Kaska’s written submissions on the EC’s proposed modifications to terms and conditions, which the Kaska provided to the Decision Bodies the day before the date of their decision.
The court held the Decision Bodies had both a common law duty to consult and a statutory duty to consult pursuant to the YESAA. The court found the Decision Bodies had provided reasons for relying on the YESAA process and that their consultation went beyond the four corners of that process. The court found there was a reasonable level of deep consultation with the Kaska, and that the Decision Bodies were open to, heard and tried to address the various concerns raised by the Kaska.
However, the court concluded the Decision Bodies had failed in their duty to consult with respect to the Kaska’s written submissions because they had not directly engaged with the Kaska on these submissions before issuing the decision. The court set aside the decision for the limited purpose of allowing consultation on these submissions.
RRDC appealed, arguing that the Decision Bodies failed to meet the duty to consult on the economic feasibility of the Project.
Court of Appeal’s decision
The Court of Appeal allowed the appeal, finding that the Decision Bodies failed to adequately consult with the Kaska on the economic feasibility of the Project. The Court set aside the decision and remitted the matter to the Decision Bodies to allow for consultation on the Kaska’s concerns about the economic feasibility of the Project.
First, the court held that it was unreasonable for the Decision Bodies to conclude that the YESAA process did not include the topic of economic feasibility. The court highlighted that the purpose of the YESAA includes considering the socio-economic effects of projects and ensuring the participation of “Yukon Indian persons” in the assessment process.[5] The YESAA also requires that the interests and views of First Nations be taken into account “fully and fairly”.[6] The court concluded that the Decision Bodies’ refusal to engage on the issue of economic feasibility before approving the Project was therefore inconsistent with the text, context and purpose of YESAA. In any event, the court emphasized that the common law duty to consult was not limited by the YESAA, and the Kaska’s concerns in light of other failed mining projects in the Yukon was properly a topic to be considered by the Decision Bodies pursuant to the common law duty to consult.
Second, the court held it was unreasonable for the Decision Bodies to defer consultation on the economic feasibility of the Project to the regulatory permitting stage of the approval process. The court found this position was inconsistent with earlier positions taken by the Decision Bodies. Specifically, the court pointed to evidence of Yukon’s position that the economic feasibility of the mine was not a proper topic of consultation with the Kaska, and that the Kaska was only entitled to be consulted on the potential negative impacts of the mine. The detailed permitting phase would include consideration of financial security for abandonment costs, but it would not include the broader question of whether the significant adverse environmental effects of the Project were “worth it” in light of the Project’s economic benefits and risks. The court held that the Decision Bodies were required to consult with the Kaska on this broader question.
The second Court of Appeal decision
A few months after the Court of Appeal’s decision was released, BMC brought an application before a single judge of the Court of Appeal, asking the court to impose a deadline to complete the consultations mandated by the first Court of Appeal decision, and to require a new decision from the Decision Bodies shortly thereafter.[7] The court held that neither a single judge in chambers nor the panel that heard the appeal had jurisdiction to make this order.
The judge held that the application was an attempt to obtain additional relief that was specifically considered and rejected at the appeal. In the court’s earlier decision, it had declined to give precise directions regarding the timing of the mandated consultation. Although there was some authority for the court to make incidental and ancillary orders after a final order on appeal, and to vary an order where unforeseen events made it impossible to fulfill, this was not a circumstance that fell into either of these exceptional categories. In particular, the judge found that, since the court had remitted the administrative decision back to the Decision Bodies, they were the ones with carriage of the matter, and any issue with their process had to be brought by judicial review.
Key takeaways
This case highlights the critical importance of thorough and meaningful consultation with Indigenous groups when proposing projects that may impact their traditional lands and rights. Governments and companies involved in similar projects should ensure all issues raised by Indigenous groups, including economic feasibility, are substantively addressed during the consultation process. Governments and companies should be prepared to provide detailed information and to engage in discussions on all aspects of such projects, including potential risks and benefits, to ensure the consultation process meets constitutional requirements.
[2] SC 2003, c 7 [YESAA].
[3] YESAA, s. 58(1).
[4] YESAA, ss. 74(2) and 76.
[5] YESAA, s. 5(2).
[6] YESAA, ss. 3, 42(1)(g) and (g.1), 57.
[7] Ross River Dena Council v. Yukon (Government of), 2025 YKCA 4.
