Court Orders Province to Consult with the Tsetsaut Skii km Lax Ha Nation

HAZELTON, B.C. – This week, the Tsetsaut Skii km Lax Ha (TSKLH) Nation filed a Notice of Appeal with the B.C. Court of Appeal to preserve its right to ask the Province’s highest court to clarify the Province’s duty to consult and accommodate the Nation with respect to Seabridge Gold's (TSX:SEA, NYSE:SA) KSM mine in Northwestern B.C. The Notice of Appeal follows the June 8 decision of the B.C. Supreme Court that granted the TSKLH Nation's petition for judicial review of the Province's July 2024 decision to give a Substantial Start Determination (SSD) to the KSM Project. Finding in favour of Tsetsaut Skii km Lax Ha, Justice Burke determined the Province breached its constitutional duty to appropriately consult the Nation. The Court overturned KSM’s SSD, and directed the Province to consult adequately with Tsetsaut Skii km Lax Ha before any reconsideration by the Ministry of Environment takes place.

Unfortunately, the Province has signalled to the TSKLH Nation its intention to adopt an unduly narrow approach to consultation on reconsideration of the SSD, ignoring key conclusions drawn by Justice Burke about the Province’s previous failures to adequately consult the TSKLH Nation. Seabridge has also made misleading statements about Justice Burke’s decision, claiming that she confirmed the reasonableness of the SSD. Justice Burke expressly declined to decide the reasonableness of the SSD, given her decision to quash it and send it back for reconsideration due to the Province’s failure to adequately consult. The CBC notably issued a correction, having previously reported Seabridge’s misleading statements, to clarify that Justice Burke had not in fact decided the question of reasonableness.

In the face of continued intransigence by the Province and Seabridge, despite the B.C. Supreme Court’s finding that the Province has failed to fulfill its constitutional obligations, the TSKLH Nation has filed a Notice of Appeal from Justice Burke’s decision to preserve its right to seek guidance and clarification from the Province’s highest court, if required. The TSKLH Nation turns to the courts as a last resort and calls on the Province to fulfill its constitutional duty, as affirmed by the B.C. Supreme Court, so that regulatory processes can move forward in a principled and orderly manner, without the need for further litigation. The Province’s current approach creates risks of further delays and uncertainty for projects in TSKLH Territory.

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“We were relieved that the Court ordered the Province to consult properly, based on its own conclusion that our territory bears the brunt of the environmental risks of the toxic waste dump for the world’s largest gold mine,” said Tsetsaut Skii km Lax Ha Chief Darlene Simpson. “We are alarmed, however, that the Province now seems to be digging in on an approach that risks further conflict, uncertainty, and environmental threats to our land and pristine waterways.”

The toxic tailings pond for KSM is expected to be approximately 52 storeys deep and is currently planned for construction on land that is the exclusive traditional territory of Tsetsaut Skii km Lax Ha.

In her ruling, Justice Burke found “The TSKLH had worked with the Province in good faith for many years to develop a detailed ethnohistoric assessment because of the Province’s commitment that it would form a ‘principled basis for the ongoing relationship’. At a critical time, however, the Province in effect disregarded those conclusions about the strength of the assessed claim without good reason.”

Justice Burke’s ruling stated the Province’s findings in its Updated Ethnohistoric Report, which included recognition of Tsetsaut Skii km Lax Ha’s traditional territory in the Treaty Creek Valley area, required a higher level of consultation than took place and should have informed the Province’s decision on granting the SSD. In the absence of this, Justice Burke found, the SSD was based on critically incomplete information. The Province now risks repeating the very same mistakes in its consultation on reconsideration of the SSD.

Also central to Tsetsaut Skii km Lax Ha's case was the assertion that signing agreements with other First Nations did not constitute adequate engagement, as the Nation's own concerns were left unaddressed.

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"The decision is important not only for Tsetsaut Skii km Lax Ha but for all First Nations," said Ryan Beaton, legal counsel for Tsetsaut Skii km Lax Ha. "It lets the Province know it can't ignore the concerns of small First Nations, particularly when they are most impacted. It upholds the constitutional requirement that all Nations have the same rights, regardless of size."

Having held that the SSD had to be struck down for inadequate consultation, Justice Burke expressly declined to decide whether the grant of SSD was otherwise unreasonable.

Justice Burke’s decision provides guidance for the Province to fulfill its constitutional obligations and Tsetsaut Skii km Lax Ha calls on the Province to engage collaboratively to fulfill those obligations. In light of the parties’ disagreement about the Court’s guidance, however, the TSKLH Nation is preserving its right to seek clarification from the B.C. Court of Appeal.

The Tsetsaut Skii km Lax Ha Nation are descendants of the Laxwiiyip Tsetsaut, an independent self-governing people who occupied Tsetsaut Skii km Lax Ha territory at the time the British Crown asserted sovereignty in the region. For more information, visit tsklhnation.ca.