The Tsetsaut Skii km Lax Ha Nation on Monday sought a judicial review of the recent approval of the KSM (Kerr-Sulphurets-Mitchell) project, arguing that the British Columbia government failed to engage in meaningful consultation with them prior to granting approval. The First Nation also contends that the proposed project poses substantial environmental risks to their traditional territory.

The duty to consult is a constitutional obligation in Canada requiring governments to engage with Indigenous groups when decisions may affect their rights, lands, or resources, as established in the landmark Haida Nation v. British Columbia (Minister of Forests) case, where the Supreme Court of Canada affirmed that it is rooted in Section 35 of the Constitution Act, 1982. The First Nation asserts that British Columbia violated this duty as well as the United Nations Declaration on the Rights of Indigenous Peoples by failing to provide adequate consultation before approving the project which lies in their territory.

The KSM Mine project was proposed by Seabridge Gold and is located in northwestern British Columbia. It is set to become one of the world’s largest undeveloped gold projects with potential for substantial economic benefits through job creation and local investment. In this context, the project has already undergone extensive environmental assessments with Seabridge Gold emphasizing its commitment to minimizing environmental impact and adherence to international environmental standards.

Further, Seabridge Gold has attempted to assuage environmental concerns by incorporating several design changes adding over $300 million to its capital costs. However, critics argue that while regulatory standards are met on paper,the real-world implementation can differ, particularly regarding the impact on water quality and human health on the Alaskan side of the Unuk River.

Tsetsaut Skii km Lax Ha Chief Darlene Simpson expressed concerns about the environmental impacts of the project to local news, stating:

When Seabridge is done with the mine, they get to go home. The Tahltan and Nisga’a get to go home. We’re the ones who have to live with the impacts of KSM’s poisonous dump for generations to come.

The judicial review filed by the Tsetsaut Skii km Lax Ha Nation underscores broader issues surrounding Indigenous rights in Canada. It highlights ongoing challenges in balancing economic development with environmental protection and Indigenous sovereignty. The case also raises concerns about the effectiveness of current consultation processes in respecting Indigenous rights, as mandated by Canadian law.

The outcome of this legal challenge could have a significant impact on future resource development in Canada, shaping how governments and companies engage with Indigenous communities, representing a critical moment in Canada’s ongoing reconciliation efforts. In September 2024, Members of Parliament convened for an emergency debate focused on the deaths of First Nations individuals during police encounters and only in November the Canadian government officially apologized for the mass killing of sled dogs.