A First Nation in British Columbia has filed a legal challenge against the provincial government, accusing it of failing to adequately consult with Indigenous peoples before granting approval to what is considered one of the world’s largest undeveloped gold mining projects. The Tsetsaut Skii km Lax Ha Nation has applied for a judicial review in the B.C. Supreme Court, seeking to overturn the provincial decision to issue a “substantial start determination” for Seabridge Gold’s KSM Mine Project, located in Northwestern B.C.
This legal move is part of the final stage of the environmental assessment process for the KSM project, which has attracted controversy due to its potential environmental impact and its location in the heart of the Tsetsaut Skii km Lax Ha’s traditional territory.
Legal Challenge Over Consultation Process
The Tsetsaut Skii km Lax Ha Nation is challenging the B.C. government’s approval of the KSM Mine Project on the grounds that it was not properly consulted during the approval process. The nation contends that the government’s decision to grant the substantial start determination for the KSM project effectively “greenlit” the world’s largest gold, copper, and silver mine without taking into account the nation’s concerns.
The mine is expected to be one of the largest of its kind, with extensive environmental implications. According to a statement from the Tsetsaut Skii km Lax Ha, the mine’s waste facilities would utilize similar technology to other mines whose toxic waste containment systems have been responsible for significant environmental damage. The statement also warns that the proposed tailings waste from the mine would be stored in a man-made pond situated next to pristine natural waterways that the nation relies on for traditional practices, including fishing and gathering food.
Failure to Address Environmental and Cultural Concerns
In its court documents, the Tsetsaut Skii km Lax Ha Nation is asking the judge to overturn the B.C. government’s determination and rule that the government failed to meet its constitutional duty to consult and accommodate the nation’s interests. The nation’s lawyer, Ryan Beaton, criticized the provincial government for disregarding the concerns of the Tsetsaut Skii km Lax Ha, stating, “The province has repeatedly acknowledged the planned location of KSM’s tailings waste is in Tsetsaut Skii km Lax Ha territory, yet for years they have ignored, and allowed Seabridge to ignore, the nation’s attempts to have its concerns addressed.”
Beaton also pointed out that the province had a constitutional obligation, as well as responsibilities under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to engage meaningfully with the nation about the impacts of the mine. “They have obligations under the Constitution and UNDRIP to meaningfully engage with the Nation about those concerns and have failed to do so,” Beaton said.
In 2019, the B.C. government passed laws to implement UNDRIP as the framework for reconciliation with Indigenous peoples, yet the Tsetsaut Skii km Lax Ha believes that this law has not been sufficiently applied to their case.
B.C. Government’s Position
While the Tsetsaut Skii km Lax Ha Nation pursues its legal challenge, the B.C. Environmental Assessment Office has declined to comment, citing the ongoing court proceedings. The judicial review, if successful, could potentially halt the development of the KSM Mine until a full consultation process with the First Nation is conducted.
The B.C. government’s handling of Indigenous consultation has come under increasing scrutiny in recent weeks. Just days before the Tsetsaut Skii km Lax Ha filed its judicial review, another First Nation, the Xatśull First Nation, expressed disappointment over the B.C. government’s decision to grant an operating permit for the Cariboo Gold Mine without meeting with the nation’s leadership or obtaining their consent. The Xatśull First Nation indicated that it was considering all legal options to address the situation, which it described as part of a broader inconsistency in the application of UNDRIP.
Allegations of Favoritism to Larger First Nations
A key part of the Tsetsaut Skii km Lax Ha Nation’s argument is that the B.C. government has been more accommodating to larger First Nations, like the Tahltan and Nisga’a, which have entered into significant agreements with Seabridge Gold. According to the nation’s legal counsel, Ryan Beaton, the province’s focus on these larger nations has led to the exclusion of smaller nations, whose lands are equally affected by the proposed project.
“There is no basis in law for the province and Seabridge to consult and accommodate only larger First Nations,” Beaton asserted. “The nation whose territory is going to be filled with toxic waste must have a voice. The province granted SSD without even sitting down to discuss the nation’s concerns about it.”
The Tsetsaut Skii km Lax Ha Nation has emphasized that the KSM project would not only affect their environmental and cultural heritage but also put their access to traditional lands and resources at risk. As the primary steward of the land in question, they argue that the province’s failure to consult them properly violates their rights under both Canadian law and international human rights standards.
Seabridge Gold’s Position
Seabridge Gold, the company behind the KSM project, has responded to the Tsetsaut Skii km Lax Ha’s legal action by stating that it does not have access to the consultation records between the provincial government and the First Nation, making it unable to comment on the merits of the claim. However, the company did assert that it has spent significant resources—approximately $444 million—on the environmental assessment process for the project, and pointed out that it had submitted letters of support from the three largest Indigenous groups in the area for the substantial start determination.
The company further noted that the substantial start determination, which is a key milestone in the environmental assessment process, remains in effect despite the ongoing legal challenge. A final decision on the First Nation’s petition could take over a year to be reached, with the KSM project remaining in a state of uncertainty during that time.
The Path Forward: Legal and Environmental Implications
The Tsetsaut Skii km Lax Ha Nation’s legal challenge to the B.C. government’s approval of the KSM Mine is emblematic of the growing tensions between Indigenous rights and large-scale resource development projects in Canada. The outcome of the case could have far-reaching implications for how the provincial government handles Indigenous consultation in future projects and could set a precedent for other First Nations asserting their rights in similar situations.
For now, the First Nation is focused on ensuring that its concerns are properly addressed and that the environmental and cultural risks posed by the KSM Mine are fully considered. “Our people have been on this land for thousands of years, and our rights must be respected,” Beaton said.
As the case progresses through the courts, both the Tsetsaut Skii km Lax Ha Nation and Seabridge Gold await clarity on the legal and environmental ramifications of the KSM project. With First Nations increasingly asserting their rights, the issue of meaningful consultation and accommodation will continue to be a critical area of focus for both the provincial government and resource developers.
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