B.C. Failed to Properly Consult First Nation on Major Northwest Mine, Judge Rules
Shraddha Tripathy
6/10/20263 min read
A First Nation in northwest British Columbia has won a court challenge after a B.C. Supreme Court judge found the province failed to properly consult it before issuing a key decision for a major proposed mine near Stewart.
The case involves Seabridge Gold’s KSM Mine, a proposed gold, silver and copper project that has been under review and development for more than a decade.
The project has been described as one of the largest proposed mining developments in Canada and one of the largest undeveloped gold mining projects in the world.
Seabridge says it has spent about $1.2 billion on the site, including $208 million since applying for “substantially started” status in January 2024.
Court Finds Consultation Was Inadequate
The province issued an environmental assessment certificate for the KSM project in 2014. Its later substantial start determination meant the project would not need a new environmental assessment certificate.
The Tsetsaut Skii km Lax Ha Nation petitioned for judicial review of the province’s July 2024 decision granting that substantial start status.
In a June 8 decision, Justice Emily Burke ruled that the province breached its constitutional duty to properly consult the nation.
Burke also ruled that the province must give the nation 90 days to provide written submissions before the Ministry of Environment reconsiders the matter.
Chief Darlene Simpson said the ruling is a step in the right direction, though the nation is still waiting to see what happens next.
“At least they are going to talk to us,” Simpson said, adding that the potential impacts on the nation are significant.
Nation Says Territory Faces Major Environmental Risk
The Tsetsaut Skii km Lax Ha Nation’s traditional territory includes parts of the Nass River, Skeena River, Bear River and Stikine River watersheds in northwestern B.C.
Simpson said the province had previously determined that Tsetsaut Skii km Lax Ha territory would bear the greatest environmental risk from the KSM mine’s proposed tailings pond.
She said the pond is expected to be about 52 storeys deep and would be built on land the nation considers its exclusive traditional territory.
Simpson said the ruling means the province must now consult properly based on its own conclusions about the environmental risks facing the nation’s territory.
Judge Says Province Relied on Incomplete Information
In her ruling, Burke found that the nation had worked with the province in good faith to develop an assessment of its relationship with the land.
That assessment was intended to help guide how the nation’s rights and title claims would be considered in future decisions.
However, Burke found that at a critical point, the province effectively disregarded conclusions about the strength of the nation’s claim without a sufficient reason.
The nation argued that the province’s updated assessment recognized its interests in the Treaty Creek Valley area, requiring a deeper level of consultation than what was provided.
Burke found the province failed to properly consider that information when deciding the project had been substantially started. Without it, the substantial start determination was based on “critically incomplete information.”
Decision Seen as Important for Smaller First Nations
The nation also argued that agreements with other First Nations did not amount to adequate consultation with Tsetsaut Skii km Lax Ha, because its own concerns had not been addressed.
Ryan Beaton, legal counsel for the nation, said the decision is important not only for Tsetsaut Skii km Lax Ha, but for all First Nations.
He said the ruling makes clear that the province cannot ignore the concerns of smaller First Nations, especially when they are among the most affected.
The province had argued that proper consultation had taken place and that it was not required to formally assess the strength of the nation’s territorial claims as part of the substantial start process.
Seabridge Gold chief executive Rudi Fronk said the company is satisfied the court also found the substantial start determination itself to be reasonable. He said work on the mine project will continue while the province undertakes its reconsideration.
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