There is greater harm in granting a stay than allowing the decision-making process to proceed: court
The Yukon Court of Appeal has denied a stay application in a dispute involving a mining project on First Nation territory, allowing government bodies to issue a new decision pending an appeal's resolution.
In Ross River Dena Council v. Yukon (Government of), 2024 YKCA 4, BMC Minerals Ltd. proposed a mining project within the traditional territory of the Kaska Nation, comprising an open pit and underground mine for copper, lead, and zinc. This area, rich in cultural and environmental significance for the Kaska, includes vital habitats, sacred sites, and historical locations near previously abandoned mines.
The Kaska Nation, particularly represented by the Ross River Dena Council (RRDC) and Liard First Nation (LFN), asserts Aboriginal rights and title over the territory. The project's site affects the Finlayson Caribou Herd, a crucial food source for the Kaska.
The Yukon Environmental and Socio-economic Assessment Act (YESAA) framework was utilized to assess the project's impacts and the need for consultation with the Kaska. The YESAA aims to evaluate environmental and socio-economic effects thoroughly, ensuring Indigenous participation and the protection of their well-being and traditional economy.
Despite a detailed submission from the RRDC and LFN expressing opposition to the project, the decision-making bodies issued a document, allowing the project to advance to the regulatory stage. The decision is based on the Yukon Environmental and Socio-economic Assessment Board’s (YESAB) recommendations and attached conditions, primarily aimed at BMC and the Yukon government, but did not guarantee final project approval.
The RRDC filed for judicial review on behalf of Kaska, challenging the decision's reasonableness and the adequacy of consultation and accommodation efforts. The court issued a ruling which required the decision-making bodies to re-issue their decision after further consultation with the Kaska Nation.
Read next: Canadian mining laws and regulations to know
The RRDC sought a stay on this order, arguing that proceeding with the new decision document before the appeal could be heard would cause irreparable harm, undermine reconciliation efforts, and potentially render the appeal moot. However, the court ultimately dismissed RRDC’s application for a stay on issuing a new decision document by various government bodies, pending the determination of an appeal.
The court found that the appeal is not likely to be rendered moot by the issuance of the new decision document, noting that construction of the mining project, should it be approved, would not commence before the appeal is resolved. The court also highlighted that refusing the stay would not harm Kaska's traditional lands or resources irreparably before the appeal's determination.
Balancing the interests at play, the court concluded that greater harm would result from granting the stay than from allowing the decision-making process to proceed. The court emphasized the public interest in responsible economic development and the completion of the consultation and decision-making process.
