A Yukon Supreme Court judge has thrown out a Yukon government decision approving a mining project south of Beaver Creek.

The judge has also ordered the government to have more "deep and meaningful” consultation with the White River First Nation (WRFN).

On March 19, 2012, Tarsis Resources Ltd., a Vancouver-based, early-stage exploration company, applied for a five-year Class III Mining Land Use Approval permit for its White River Quartz Exploration Project.

Six months later, the government's director of mineral resources approved the project.

In making his decision, the director disagreed with a recommendation by the Yukon Environmental and Socio-economic Assessment Board (YESAB).

The board had recommended the project not be allowed to proceed because it would have significant adverse effects both on wildlife and wildlife habitat.

Concerns specifically surrounded the Chisana caribou herd and the WRFN's traditional land use and culture.

In his decision, Justice Ron Veale rules that the director "breached his duty to consult and accommodate the White River First Nation by failing to provide a meaningful process to provide feedback on the government's basis for rejecting the recommendation that the White River project not proceed.”

The judge ruled consultation after a recommendation is rejected "must be deep and meaningful. While the First Nation has no power to require the evaluation report to be accepted, it should have an opportunity to address the government's basis for rejecting it.”

The government argued it had done enough to consult with the First Nation, including by routinely reviewing concerns online and through a meeting on Aug. 12, 2012 — weeks before the decision was made.

Veale disagreed.

"I disagree with the characterization of the discussion with the White River First Nation on August 21 as "far-reaching”. Unlike the Liard First Nation consultation, where conflicting substantive views on the need for baseline data were exchanged and considered by acknowledged experts on each side, the decision body in the case at bar did not reveal any basis at the consultation meeting on which it might reject the recommendation.

"The basis of its rejection of the evaluation report was disclosed on August 29, 2012, after the consultation meeting and only days before its September 5 decision document rejecting the recommendation of the evaluation report.

"In my view, the process amounted to "tell us what you think of the evaluation report but we will not give you any idea where we have problems with it.”

Veale made it clear very early on in his 49-page ruling that it was not up to the court to decide the merits of the director's decision – only to discuss whether the First Nation had been properly included.

He has ordered both sides back to the consultation process, as outlined by the law. After "deep consultation” regarding the director's stance, he can issue his decision again, Veale said.

Tom Ullyett, with Yukon's Department of Justice, said Tuesday the courts play an important role in helping to clarify the laws surrounding consultation.

"The area of aboriginal consultation is an evolving one, and a complex one,” he said.

"Of course, when you go to court, you know that a decision can go one way or the other.

"Obviously, the government was hoping for a different result, but that was not to be the case here.”

Ullyett said the department is still reviewing the decision and has not decided if it will appeal.

In statements Tuesday, the WRFN was critical of the government's handling of the situation and the YESAB process.

"WRFN asks the fundamental question: If YTG at the political level and EMR are going to demonstrate so little faith in their own YESAA (Yukon Environmental and Socio-economic Assessment Act) process that they would overturn their recommendation, why should First Nation governments and industry invest their time and money participating in YESAA?

"It makes a sham of the regulatory regime in the Yukon Territory.”

Veale acknowledged that White River has a claim to its traditional territory even without an official land claim agreement.

"The Yukon government is well aware of the claim of the White River First Nation to its traditional territory,” he said.

"The Council of Yukon First Nations entered into the Umbrella Final Agreement on behalf of White River First Nation, among others, to negotiate a final agreement. Canada, Yukon and White River First Nation negotiated for many years, and although no final agreement was reached, it is disingenuous to suggest that the First Nation has a weak claim. It is a strong claim.”

That recognition by Veale was highlighted by the First Nation's deputy chief, Dwayne Broeren.

"We have been asking the premier for a real process of engagement to resolve our issues.

"We have made reasonable proposals to the premier to provide certainty for our nation, the government and industry, which YTG have continued to refuse. WRFN is unaware of any legal reason why they won't engage with us – they just don't seem to want to,” he said.

"They act like we are not here, that our territory is empty. Justice Veale has recognized that we have strong claim to rights within our territory. We did not want to go to court, but the premier left us no choice.

"Yet again, the YTG's refusal to deal with our concerns and the concerns of other First Nations is hurting the Yukon economy.

"There will never be the kind of certainty that will encourage mining exploration or prevent layoffs like those at Yukon Zinc and Alexco; or see mines like Brewery Creek or Victoria Gold go into production, until First Nations issues are properly addressed.”

Cabinet spokesperson Matthew Grant said the government is not commenting on the decision because it is currently being reviewed by legal counsel.