The Kudz Ze Kayah mine project, located in the centre of Finlayson caribou territory, was approved earlier this year. Affected First Nations are applying for a reversal of the decision in Yukon Supreme Court. (Courtesy/BMC Minerals)
Court Date Set for First Nation Petition Against Kudz Ze Kayah Mine. Yukon News
Yukon News
October 30, 2022 | Jim Elliot
The challenge to the approval of the mine is brought by Ross River Dena Council on behalf of Kaska.
A hearing date has been set for the Ross River Dena Council’s (RRDC) legal petition to reverse the government’s approval of the Kudz Ze Kayah project, a proposed mine to be located southeast of Ross River.
RRDC brings the petition, which was revised and resubmitted to the courts Oct. 6, on behalf of the rest of the Kaska Nation. The Yukon government, Attorney General of Canada and BMC Minerals are named as respondents.
The petition seeks an order quashing the decision document approving the mine that was issued through the Yukon Environment and Socio-economic Assessment Board (YESAB) in June and referring it back to the government decision bodies for further review. Natural Resources Canada, Fisheries and Oceans Canada and the Yukon government are listed as decision bodies on the document.
RRDC wants the decision quashed on the grounds that YESAB and government decision-makers failed to consult and accommodate the Kaska Nation and that the decision was procedurally unfair.
The Kudz Ze Kayah mine project at the centre of the court proceedings is set to be a copper, lead and zinc mine with open pit and underground portions.
Also being sought is an order compelling the decision bodies to “complete meaningful and deep consultation with Kaska regarding the project, give full consideration to a letter they received from Kaska representatives hours before the decision was issued and work with the Kaska to apply their Indigenous assessment process to the project.”
The Kaska also want it ordered that the court will retain jurisdiction to resolve disputes during the consultation process and that a new decision document cannot be issued until the other orders are in place.
In the decision document made public in June, the government decision bodies said the project should be allowed to proceed without further review, but also varied the recommendation allowing the project to proceed only under conditions meant to mitigate the adverse effects it will have on the Finlayson caribou herd among other considerations.
Ross River Dena Council’s petition details how they raised concerns both before and after the YESAB executive committee’s initial recommendation. Concerns include the Kaska lacking the necessary time and funding to participate in the consultation process and the project’s destruction or fragmentation of wildlife habitat including that of the Finlayson caribou herd. Worries were also voiced about the degradation of the area’s heritage values that include a caribou fence traditionally used in hunts and Kaska burial grounds.
The petition also notes that the proposed mine is in proximity to other mine projects that have been abandoned when they became financially unviable.
The letter flagged in the petition comments on the “ongoing consultation and accommodation failures by the decision bodies on the project,” as well as technical information, according to the RRDC. The petition states the decision bodies issued their decision less than a day after receiving the letter from RRDC and the Liard First Nation, contrary to assurances they had made in an earlier meeting.
An Oct. 3 case management conference set the schedule at which the petition will be heard in Yukon Supreme Court going forward. A four-day hearing is scheduled for April 2023.
Contact Jim Elliot at jim.elliot@yukon-news.com.
Ross River Dena Council Seeks Judicial Review of Mine Project
Whitehorse Daily Star | News
July 26, 2022 | Whitehorse Star
Mine property triggers First Nations concerns – The Kudz Ze Kayah property, now the subject of a request for a judicial review, is located 115 kilometres southeast of Ross River.
Photo: Submitted photo / Whitehorse Daily Star
The Ross River Dena Council (RRDC), on its own behalf and on behalf of the Kaska Nation, has filed an application in Federal Court for a judicial review of a decision involving a major mining proposal. The filing was made July 15.
The June 15 decision was made by the Yukon government, Natural Resources Canada and Fisheries and Oceans Canada.
It permits BMC Minerals Ltd.’s proposed Kudz Ze Kayah Project to proceed within Kaska territory, subject only to regulatory permitting.
The Kudz Ze Kayah property is located 115 kilometres southeast of Ross River.
The RRDC issued a press release last Sunday outlining its objections to the proposal.
The Kudz Ze Kayah Project involves the construction and operation of a large industrial copper, lead, and zinc mine, entailing intrusive open-pit and underground mining methods in the Finlayson Lake area, says the press release.
The project is proposed in the heart of the Ross River area of the Kaska Territory, over which the Kaska Nation holds and has exercised constitutionally protected Aboriginal title, rights and interests since time immemorial, the release notes.
The project is also located within important habitat of the Finlayson caribou herd, in a critical area actively used by these caribou for rutting, and for travelling through to access calving areas.
The herd’s population has been in decline for several years, due in large part to the cumulative effects of industrial development in the area, including past mining projects in close proximity to the Kudz Ze Kayah Project.
“The Finlayson caribou herd holds special importance to the Kaska Nation, including with respect to the exercise of their constitutionally protected Aboriginal title and rights,” the release said.
Chief Dylan Loblaw notes the following in respect to the critical importance of this area to his community and the Kaska Nation.
“Not only is the Project proposed in a place of refuge for the Finlayson caribou herd, but this area also contains sacred burial grounds, and a historical caribou fence built by our Nation to manage and sustain the herd in accordance with our traditional practices,” Loblaw said.
“These sacred sites are of the utmost importance to protect and respect the future our culture, our children and the biodiversity that thrives in gudzi kayah!
“The federal and territorial decision-makers have allowed this project to proceed without Kaska consent with their decision, and with meaningful consultation with our Nation still outstanding, which will devastate the Finlayson caribou herd, and our inherent Kaska rights to manage this vulnerable caribou population – the cumulative effects will ultimately be too great to manage,” the chief added.
BMC Minerals is planning a mine life of 10 years, following two years of construction.
The company expects to process two million tonnes of ore annually, producing 7.8 million ounces of silver every year along with 180,000 tonnes of zinc, 60,000 tonnes of copper and 35,000 tonnes of lead.
BMC is anticipating having a workforce of some 300 when the mine is in operation and between 350 and 400 during construction.
It has estimated it would cost $376 million to bring the mine into production.
The Yukon Environmental and Socio-economic Assessment Board did recommend the project be allowed to proceed, and both the Yukon and federal governments agreed.
Governments do not make media comments on matters before the courts.
RRDC’s application for judicial review alleges multiple failings by the Yukon and Canada to comply with the Crown’s constitutional duty to consult the Kaska Nation prior to making a decision allowing the Kudz Ze Kayah Project.
“RRDC has brought the application on behalf of the Kaska Nation as a whole, and is encouraged by the support and solidarity of the Kaska Nation in uniting to protect Kaska rights and title from being irreparably harmed by the Kudz Ze Kayah Project,” the release said.
Ross River Dena Council File Judicial Review
CKRW 96.1 FM The Rush | News
July 25, 2022 | Curtis Geroux
An application has been filed in Federal Court for a judicial review from the Ross River Dena Council regarding the Kudz Ze Kayah Mine Project
ROSS RIVER – A judicial review has been filed on behalf of the Ross River Dena Council and the Kaska Nation for the decision on the Kudz Ze Kayah mine project
The filed application for a Federal Court judicial review of the June 15, 2022 decision of the Yukon Government, Natural Resources Canada and Fisheries and Oceans Canada allowing the proposed BMC Mineral Ltd’s Kudz Ze Kayah Mine Project, which is set for regulatory permitting.
The Kudz Ze Kayah Project entails the development and operation of an industrial copper, lead, and zinc mine that will use both open-pit and underground mining methods.
This is right in the heart of Ross River and the Kaska Territory, which is exercising constitutionally to protect the Aboriginal title, rights and interests of that area. According to the RRDC, the Kudz Ze Kayah Project is also located in the key habitat for the Finlayson Caribou herd.
The number of this caribou in the herd has been declining for several years, owing in large part to the cumulative impacts of industrial activity in the area, including previous mining ventures near the Kudz Ze Kayah Project.
The RRDC’s judicial review application alleges several failures by Yukon and Canada to comply with the Crown’s constitutional responsibility to consult Kaska Nation before approving the Kudz Ze Kayah Project.
