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Chief Justice Suzanne Duncan

YG failed to consult with First Nation: court

Chief Justice Suzanne Duncan of the Yukon Supreme Court has found the territorial government failed in its duty to consult the First Nation of Nacho Nyak Dun in a land use issue.

By Chuck Tobin on February 7, 2023

Chief Justice Suzanne Duncan of the Yukon Supreme Court has found the territorial government failed in its duty to consult the First Nation of Nacho Nyak Dun in a land use issue.

Duncan found the government had a duty to consult with the First Nation prior to approving a land use application by Metallic Minerals to conduct an exploration project in the Beaver River area.

The chief justice issued her 89-page decision last Thursday.

In finding the government failed in its duty to consult, Duncan has ordered it to return to the point in the land use planning process where consultation needs to be undertaken.

She has also quashed Metallic Minerals’ land use approval.

“The decision of the Yukon government is quashed and set aside, on the basis that the Yukon government breached the honour of the Crown by failing to consult properly,” says Duncan’s decision.

“In the alternative, it is set aside because the Yukon government breached the honour of the Crown by failing to act in a way that accomplishes the intended purpose of the Final (land claim) Agreement.”

Duncan wrote the essence of the dispute is whether the government can approve an exploration project in the Tse Tage region of the First Nation’s traditional territory in the context of the Final Agreement land use planning provisions and when a land use planning process between the government and the self-governing First Nation is occurring at the same time.

Duncan’s decision notes the a government’s decision occurred while the government and the First Nation were already engaged in a joint land use planning process for the Beaver River area.

The government’s decision to approve the land use application was also unreasonable because the government did not engage with the submissions and evidence provided by the First Nation and did not comply with the legal constraints of the decision.

“The failure to consider the ongoing land use planning process was a breach of the duty of good faith in the performance of the Intergovernmental Agreement,” the decision says.

“Declarations of the breaches of the two duties flowing from the honour of the Crown and of the breach of the duty of good faith are granted.”

Duncan noted in her decision the government also failed to engage with the submissions from the First Nation about the adverse effects of the decision on their right to meaningful participation in the management of resources, as provided for in the Final Agreement.

The duty to consult, Duncan noted, is set out in the Final Agreement.

Duncan did not award either party costs, but noted the parties are able to speak to costs during case management meetings.

Comments (13)

Up 13 Down 5

drum on Feb 10, 2023 at 5:16 pm

Where is the pride of being independent and not asking for government money (taxpayers money remember)?

Up 16 Down 4

Groucho d'North on Feb 10, 2023 at 9:45 am

If these negociations are for the betterment of Yukon society - or some other reason. why are they being conducted behind closed doors without public input?
“Laws Are Like Sausages. It Is Best Not To See Them Being Made.”

Up 25 Down 3

UN on Feb 10, 2023 at 8:50 am

We need to decolonize systems; wait, we need the colonized system to make things work for us.
The Yukon will only get somewhere with two dual governments competing simultaneously. Until there is a uniform decision that protects all Yukoners, nothing will change. The FN will hold governments and companies hostage. This will change, especially those companies that can shelf projects for 20 years and wait for people to become desperate. We are a welfare territory, and people need to understand that one day, the Feds might think those transfer payments need to be cut, and people will suffer.

Up 15 Down 20

Why are the comments being restricted? on Feb 9, 2023 at 9:30 am

Dear Juniper Jackson on Feb 8, 2023 at 2:59 pm:

Government monies come from taxation. Taxation is based on ‘ownership’. Until the FN have a tax base from which to generate income they will require ongoing financial supports to keep the day-to-day operations going.

FNs have had their ability to provide for themselves hamstrung by the dominant society’s confiscation of their lands, their right to property, and their ability to self determine.
Please be patient while we restructure society to facilitate FN ownership and control of the lands necessary to generate revenue - Assimilation 3.0!

You will own nothing and be happy… That will be $20 per day to hike the tombstones, $40 per day to canoe through the Peel watershed, and $50 dollars for a t-shirt with a cultural appropriation permission surcharge of $5.95 which allows non-indigenous persons to wear the t-shirt for the life of the t-shirt.

This is the real reason for the current efforts to redefine the intent of the Umbrella Final Agreement (UFA). But anyway… one, two the L-NDP-FN coalition are coming for you, three, four the L-NDP-FN coalition are gonna kick in your door, five, six the taxpayer will get beat with sticks, seven, eight the first peoples are really great, nine, ten they are going to do it again, and again…

The lemming-like electorate have MAID their bed without the benefit of a benevolent protectorate… They deserve to have whatever they have taken from them… They want it, they elected it, they deserve it!

Up 27 Down 8

Yukoner32 on Feb 8, 2023 at 8:42 pm

First Nations pretend to care about the planet, but what they really care about is their own backyard aka huge traditional territory. Its just NIMBYISM on a larger scale. We as a society NEED to mine things in order to live in a developed, civilized world (aside from gold I suppose which is just mining for money in reality. I don't think much of it gets used for anything aside from jewelry and sitting in bank vaults).

Every non-gold mine that is stopped in Yukon whether it be copper, zinc, cobalt, silver etc etc means another mine will be developed in some other part of the world. One way or another, needed minerals will be mined in some other part of the world probably in South America, Asia or Africa where there are very lax environmental regulations if any at all.

So every time a mine is stopped in Yukon, we should congratulate First Nations and environmentalists for successfully preserving the environment here while almost certainly doing much greater damage elsewhere in the world. If you are concerned about the planet as a whole or humanity as a whole, you will not celebrate every time a mine is prevented from opening in the Yukon. But what do I know, perhaps its better for the environment to have a large copper mine in the middle of the rainforest in Indonesia or Congo instead of here in the boreal forest where a caribou herd might be impacted. Perhaps the local people in these places will also be happy with a mine knowing they saved 1-2 kilometers of hunting grounds for some 1st world people in a far away land.

Up 31 Down 7

Yes, Massa on Feb 8, 2023 at 8:39 pm

A great example of a s**t decision made by an equity appointment beholden to her Liberal cronies for reasons we probably don’t even want to know. If you know what’s good for you, stay as far away from SCOY as possible.

Up 13 Down 7

bonanzajoe on Feb 8, 2023 at 7:27 pm

@Juniper Jackson on Feb 8, 2023 at 2:59 pm.
Brief and well put.

Up 21 Down 6

Justice System Participant on Feb 8, 2023 at 4:30 pm

Yes, a clone of Veale. Which is EXACTLY why he nominated her to the position.

I guess we should be grateful it wasn't some of the other judges/lawyers who might have been picked, though a recent move of Ms. Duncan's really has me wondering now.

Up 56 Down 16

Juniper Jackson on Feb 8, 2023 at 2:59 pm

Breached the 'honour of the Crown".. really?

FN can't even feed themselves without Government money to run their government, fund SA etc. They want to be independent? When would that be"
Stop the money flow.

Up 43 Down 8

Bench Bacon on Feb 8, 2023 at 2:30 pm

In two or three years when the government money trough has dried up under the austerity measures already being discussed in Ottawa, NND citizens are going to be in a very tough spot. I wonder if it’s truly the consensus of those good folks to choose poverty for their young people. Human beings always have and always will need to make choices between progress and preservation. Going back to pre-contact, decisions about rotating harvest areas to avoid prey population collapse are analogous to making ecological sacrifices to support human development. It’s always been a compromise. However, that’s not what we see here. An established obstructionist approach brings with it the type of reputation that drives away all legitimate investment.

Lack of opportunity is what breeds epidemics of entrenched mental health disorders, family violence and addiction regardless of background. Opiates in the American ‘rust belt’ following the offshoring of jobs, crack cocaine in big cities during the last inflationary crisis in the early 80s, alcohol and gambling flourished during the Great Depression despite prohibition…

Additionally, the verdict of history is very clear on the outcome of any ethnocentric command economy. Suffering of common people at the hands of their leaders. There isn’t one single exception. They flare up for a while and even look idyllic for a time, but always languish and fail. Often with horrific consequences discovered later.

You can’t have healthy communities and no development. FNs have every right to try, but the pitfalls are massive and the benefits ethereal. All the consultants and lawyers telling you what you want to hear, that you can have it both ways… are lying to you. It’s just a different kind of colonialism. They pocket their fees and leave the chaos for you to clean up. Some pigs are more equal than others. Sorry.

Up 22 Down 11

bonanzajoe on Feb 7, 2023 at 7:53 pm

Well, here we go again. Maybe somebody needs hearing aids.

Up 39 Down 13

Chief Justice on Feb 7, 2023 at 7:19 pm

The judge says the government failed to negotiate or communicate with the band….that means the government said no to the band after it did consult with the band, it’s no different than it is in any yesab review…this project consultation period or comments has been extended due to giving the First Nation more time to comment…..which actually means giving anyone in the First Nation or surrounding area more time to try and come up with some bs comment so the yesab board can trash the project due to some bs excuse. And in this example the judge bought it hook line and sinker, Mayo band needs to get off their arse and start thinking progressively, kill the goose and ya have nutin.

Up 93 Down 8

Max Mack on Feb 7, 2023 at 1:44 pm

Repeat of Veale's decision re: the Peel. Same underlying rationale. Same underlying direction. This is the direction the courts have set.

Bottom line. FN have veto power over any development in the Yukon.

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