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.