The Little Salmon-Carmacks First Nation has launched legal action in Yukon Supreme Court against the Yukon Environmental and Socio-economic Assessment Board and the Casino Mining Corp.

It claims the Vancouver-based mining company did not meet its duty to consult the community before submitting to YESAB a proposal for the largest mining project in the territory's history.

Little Salmon-Carmacks is asking the court to quash or set aside last month's decision by the YESAB executive committee that stated Casino "had complied with its obligation to consult” regarding its proposal to build an access road for a future open-pit copper, gold and molybdenum (used in the making of steel) mine in central Yukon.

Construction of the mine and access road is projected at $2.6 billion. The lifespan of the mine is expected to be 30 years.

The petition comes in the wake of three other legal actions in the past two-and-a-half months by First Nations concerned about consultation and staking issues in their traditional territory.

The suit — technically a proceeding for judicial review — argues that the board "erred in law” in accepting that Casino met its obligations under territorial statutes and the First Nation's final agreement, and thus made a "breach of the duty of procedural fairness.”

"It is totally unfair of YESAB to allow this to continue,” said Little Salmon-Carmacks Chief Eric Fairclough in a release Thursday.

"We are not against mining, but we are against getting ignored or stepped over by the mining company.

"The duty to consult with Little Salmon-Carmacks before the YESAB process starts is a fundamental legal and treaty obligation. This isn't just lip service – we bargained for these rights in our final agreement, and we can't allow YESAB and Casino mines to just go through the motions,” he continued.

"It must be meaningful, and our communities' rights must be respected, and the project and road designed with our input and participation.”

Gregory McDade, the lawyer for the First Nation, said in an interview this morning that because the project crosses settlement land, Little Salmon-Carmacks is a "decision body and has a right to decide whether that project proceeds or not.

"Let me be more accurate, they have a right to decide ... whether that road proceeds or not. Without that road, that project's in serious jeopardy.”

Casino, a subsidiary of the Vancouver-based Western Copper and Gold Corp., hopes to upgrade and extend the existing Freegold Road — an old mining road — and carve a gravel path that cuts across roughly 20 kilometres of Little Salmon-Carmacks settlement land, as well as swaths of its traditional territory, the petition states.

The road, which would start just south of Carmacks and shear 150 kilometres northwest over undeveloped land to terminate at the mine site, would see "substantial ... traffic volumes,” according to the lawsuit, filed yesterday in Yukon Supreme Court.

"When the Casino Mine is in operation, it will include numerous heavily loaded ore trucks, supply and equipment trucks, workers and other vehicles, exceeding 124 vehicles per day,” the petition states.

The 640-member First Nation is worried that road construction and operation could have a major impact on their settlement and traditional lands. The petition cites potential loss and damage to settlement lands, impacts on water quality, fisheries resources and wildlife like caribou and moose, and socio-economic repercussions arising from an influx of people to the area.

Health effects, soil disturbance and contamination, and cultural impacts are also listed.

"They're the band that's going to take the brunt of all the change here,” McDade said. "This project will really impact Carmacks in terms of jobs, more population, social services ... and so even on a moral basis they should have fairly serious input as to how the project proceeds.”

The petition states that Casino gave Little-Salmon Carmacks "inadequate notice” of the access road project before submitting the proposal, leaving community members insufficient time "to prepare its views with the assistance of experts.”

The First Nation had six weeks between Nov. 21, 2013 and Jan. 3, 2014 to review Casino's report for the proposed road before the mining company filed its project proposal with YESAB.

"This time frame completely failed to provide LSCFN with adequate time to prepare its views, or the opportunity to present its views to CMC, or even to ask questions or seek information, on the road proposal,” wrote Fairclough in a letter to YESAB executive committee chair Stephen Mills last month.

The Yukon Environmental and Socio-economic Assessment Act requires that proponents give "notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter.”

Fairclough stated that requests for engineering reports on the road and additional information on, for example, borrow pit and rock quarry locations on the First Nation's land "have not been answered.... No reports have been provided.”

He noted that contrary to the language used in Casino's proposal, the access road is not just an "upgrade” to an existing road, "but requires a new route in a number of locations and other major changes.”

Fairclough asserted the rights of Little Salmon-Carmacks are equivalent to surface ownership on its Category B settlement lands, "and an incursion on our lands in the nature of the proposed access road requires LSCFN permission.”

He added that Casino "cannot have considered LSCFN's views because those views have not yet been presented.”

The petition echoes his complaint, stating that mining company "provided a much more detailed consultation with another First Nation — Selkirk — over a much greater period of time, and with funding assistance.”

The suit adds that Casino violated statutory requirements stipulating Little-Salmon Carmacks get a chance to voice its opinion — and have that opinion heard.

"LSCFN not having had the required opportunity to present its views, CMC could not have and did not fairly and fully consider LSCFN's views on the proposed Casino Mine and access road.”

"This is the wrong way to go about dealing with Little Salmon Carmacks,” Fairclough said this morning. "The company and YTG need to understand we intend to have a say: No road, then no mine.”

In a letter dated March 13, 2014, YESAB executive committee chair Stephen Mills wrote to Fairclough: "The executive committee has determined that CMC has met their statutory requirement (to consult) under Section 50(3) of the Yukon Environmental and Socio-economic Act.

The letter acknowledges the potential for "significant environmental or socio-economic effects” on the traditional lands of the Little Salmon-Carmacks, Selkirk and Tr'ondek Hwetch'in First Nations.

The petition goes so far as to state that Casino admitted to a misinterpretation of the required consultation

A letter from Casino dated Feb. 19 "admits to being under a misconception that ‘LSCFN would prefer to turn their attention to the project, particularly as it relates to traditional knowledge and the components of the project that affect them, after the project proposal had been submitted.'”

The petition insists that the First Nation "did not request and did not come to any agreement with CMC regarding a postponement of consultation in respect of the proposed Casino Mine and access road.”

As late as Jan. 3, the day Casino submitted the proposal, Little Salmon-Carmacks assumed the company "was still in the process of developing a mutually agreeable consultation protocol that would set out the process for consultation prior to the submission of the project proposal to the executive committee.”

A spokesperson for Western Copper and Gold Corp. declined comment.

The petition notes that the executive committee sought additional information from Casino to see whether it had fulfilled its duty to consult, but also that it "sought input on consultation from CMC only.”

The committee sent documents "totalling hundreds of pages and submissions ... and significant correspondence took place between CMC and the executive committee....

"LSCFN was not copied on this correspondence and not given an opportunity to reply.”

Late last month, the Kaska Dena Council of Lower Post, B.C. launched legal action against the territorial government, claiming it has a duty to consult the First Nation before recording any mineral claims or permitting any exploration activity in its traditional territory across southeast Yukon.

A lawsuit filed in January by the Tr'ondek Hwech'in and the Na-cho Nyak Dun as well as two environmental groups challenges the government's land use plan for the Peel watershed.

The plan, announced Jan. 21, permits mineral staking in 71 per cent of the Peel and is, the plaintiffs argue, a rejection of an official planning commission's final recommended scheme, whose ban on staking in 80 per cent of the region they support.

The case will receive an extended hearing in Yukon Supreme Court this summer.

A lawsuit filed in February by the Taku River Tlingit argues the territorial government breached its legal duty to consult the B.C. First Nation, whose traditional lands extend into the Yukon, before issuing a decision on a proposed campground, approved for construction along the Atlin Road last January.

Their lawsuit was followed by a second one in March against the federal government for allegedly failing to protect the First Nation's claims in the Yukon.