On April 9, 2024, the Yukon Court of Appeal issued its decision in First Nation of Na-Cho Nyäk Dun v. Yukon (Government of), 2024 YKCA 5. This decision relates to a mineral exploration project (the "Project") located entirely in the traditional territory of the First Nation of Na-Cho Nyäk Dun ("FNNND"), specifically the Tsé Tagé (or Beaver River) watershed area.

In 2021, the Project was issued a decision document (the "Decision") after being assessed under the Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7 ("YESAA"). The Decision allowed the Project to move from the assessment stage to the regulatory authorization and permitting phase. The FNNND successfully applied for judicial review of the Decision for failure to satisfy the duty to consult. The Decision was quashed and sent back to the decision maker for reconsideration. In addition, the Yukon Supreme Court issued three declarations sought by FNNND.

The Yukon Court of Appeal dismissed the appeal of the order setting aside the Decision. However, two of three declarations were set aside.

The Project now awaits reconsideration but this decision illustrates that where a decision-maker does not engage with respect to key issues and refuses the request of an Indigenous group regarding how to discharge a deep duty to consult, they must justify their decision to the Indigenous group in a meaningful way.

YESAA Assessment and Consultation

FNNND was one of the first four Yukon First Nations to sign a comprehensive land claims agreement, including the First Nation of Na-Cho Nyäk Dun Final Agreement (the "Treaty") and a Self-Government Agreement in 1993 (collectively, the "Final Agreements"). The YESAA was enacted as a result of the comprehensive land claims agreements in Yukon.

An application for assessment of the Project pursuant to the YESAA was submitted on February 11, 2020. Yukon initiated consultation by requesting FNNND's views on potential adverse effects of the Project on treaty rights. FNNND expressed concerns about the potential impacts of the Project and asserted that a decision on final regulatory approval of the Project should not take place while there were ongoing discussions about the development and implementation of the Beaver River Land Use Plan as contemplated by the Treaty.

Communications between the FNNND and Yukon continued between March 2020 and December 2020. FNNND requested direct consultation with the community and proposed that Yukon would make no decision on the final regulatory approval of the Project until the Beaver River Land Use Plan was complete. In response, a Mining Lands Officer wrote to the FNNND repeating Yukon's position that the Final Agreements do not contemplate the cessation of all development activities until the completion of land use plans. The Officer also advised that it was "not feasible" to engage in community consultation. FNNND wrote to the responsible Minister again to reiterate its position regarding the Beaver River Land Use Plan and emphasized the need for community consultation.

The Decision was issued on February 19, 2021.

Judicial Review

On judicial review, the Decision was quashed and the Project application was sent back for reconsideration. In 2023 YKSC 5, the Yukon Supreme Court found that the Yukon government breached the honour of the Crown by failing to consult properly. The Yukon Supreme Court also issued three declarations sought by the FNNND.

The Court of Appeal Decision

Ultimately, the Court of Appeal agreed with the Supreme Court that the duty to consult on the Project application had not been discharged. The Court of Appeal invited additional submissions on the practical utility of the declaratory relief granted and set aside two of three declarations from the Supreme Court.

The Court of Appeal held that Yukon did not engage in addressing the FNNND's position that exploration authorizations should not be issued in the Tsé Tagé watershed until the sub-regional land use planning was complete and that this was a failure to engage with FNNND on an issue of central importance. As stated by the Court of Appeal:

[131] In light of the Intergovernmental Agreement, it also seems to me to be impossible to argue that the First Nation here was letting the weight of the cumulative land use planning problem fall on the head of the applicant, Metallic Minerals. In my view, the consultation required was certainly broad enough to include consultation on the question of why the Metallic Minerals application should be approved prior to the completion and implementation of the Beaver River Land Use Plan.

The Court of Appeal concluded that Yukon also failed to engage in adequate consultation by failing to meaningfully respond to the FNNND's request for community consultation. The Court of Appeal stated that:

[141] ... It seems to me obvious that the duty to consult entails some consideration of the submissions of the party to whom the duty is owed with respect to the most effective means of discharging the obligation. Yukon cannot refuse requests made by a First Nation for community or in-person hearings without some justification for doing so. ...

[142] ... It was, of course, open to the Crown to decline the request for community consultation. However, if it decided to refuse the request, it was obliged to provide the First Nation with, to borrow the language of the reviewing judge, "a more meaningful explanation than this type of consultation is 'not feasible'" ...

The Court of Appeal upheld the declaration that "Yukon breached its duty of good faith in the performance of the Intergovernmental Agreement, by failing to consider the effect of the Decision on the ongoing land use planning process under the Intergovernmental Agreement." The other two declarations were set aside for lack of practical utility given the order to quash the Decision and send the Project application back for reconsideration.

Implications

This decision emphasizes that, for decisions where a deep level of consultation is required and where an Indigenous group makes requests relating to consultation, the consulting body must meaningfully consider and respond to those requests.

Further, this decision clarifies that where courts issue declaratory relief, they will closely examine the practical utility of the declarations issued in the context of the other relief.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.