By Tennile Sunday and Laura Bowman
The BC Supreme Court recently ruled, in Tsetsaut Skii Km Lax Ha Nation v British Columbia (Environment and Parks), 2026 BCSC 1042, that BC failed to adequately consult a First Nation in a decision about one of the world’s largest proposed gold mines.
On June 8, 2026, Justice Burke for the Supreme Court of BC issued a decision with respect to the Tsetsaut Skii km Lax Ha Nation’s (TSKLH) petition for judicial review of a “substantial start date” (SSD) determination of the Kerr-Sulphurets-Mitchell project (the KSM project). The court found in favour of TSKLH, finding that the Province had failed to adequately fulfill its duty to consult. The SSD determination was remitted back to the Minister of the Environment for reconsideration after further consultation.
The KSM Project
The KSM project is a massive proposed open pit and underground gold, copper, silver, and molybdenum mine. The KSM project is anticipated to produce 130, 000 tons of ore per day over its mine life of up to 52 years and a tailings pond and facility are proposed to be built in TSKLH asserted territory. This tailings facility would be one of the largest in North America, at over 700 feet deep, and storing 1.62 billion tons of tailings. The project would produce 2.3 billion tons of acid-generating waste rock.1
A provincial environmental assessment certificate (EA certificate) was issued to KSM in 2014 for the project, and later it was determined that July 25, 2024, was the SSD of the project under the Environmental Assessment Act. When a project is determined to have been substantially started, its EA certificate remains in effect for the lifetime of the project.
Updates to TSKLH Territory
In 2021, the Province provided TSKLH with an ethnohistoric report, concluding that TSKLH has a broader claim to the territory than was previously recognized. This report resulted in updates to the Province’s consultative area database and advised that the KSM project is indeed located within TSKLH territory. In a letter sent in 2023, the Province represented to TSKLH that these updates would inform its consultation efforts going forward.
The Province’s Duty to Consult
Concerned about the impacts of the KSM project on its territory, TSKLH sought judicial review of the determination of this SSD. TSKLH asserted Aboriginal rights and title to the territory and alleged inadequate consultation by the Province, including the province’s failure to assess the strength of TSKLH’s Aboriginal rights and title claim based on the ethnohistoric report.
The Court held that, in the circumstances, the Province was obliged to provide TSKLH with an appropriate opportunity for consultation. To gauge the level of consultation required, the Province should have conducted a strength of claim assessment at a prima facie level prior to determining the SSD. While the Province claimed that it had conducted a “deep” consultation, the Court found that, where the Province had acknowledged a change in strength of claim yet did not factor this change into its SSD process, deep consultation could not be claimed. While the court did not require consultation to be perfect, it held that more effort is needed when a matter at hand is a critical issue, such as an EA certificate with a duration of over 50 years.
According to the Court, the Province should have acted and/or paused the SSD process, assessed the strength of the TSKLH’s claim to the area at issue, reassessed the level of consultation needed, and then moved forward. An identified change in circumstances cannot simply be ignored in the SSD process on the basis that it will be addressed later. The honour of the Crown requires the Province to address changes at the time they are identified. Therefore, the Court held, the Province’s actions were “too late and insufficient.”
The Court also found the Province’s failure to give effect to the letter sent in 2023, representing a change in consultation areas, was inconsistent with the honour of the Crown and stated that the fact that other proceedings are underway should have no impact on the duty to consult.
Conclusion
The Court concluded that the Province breached its duty to consult the TSKLH with respect to the SSD decision and that because of this, the SSD decision would need to be reconsidered, therefore the court found it unnecessary to decide whether the SSD decision was reasonable.
For First Nations, this decision confirms that where the Crown recognizes new information regarding a Nation’s claim, it cannot refuse to consider how that information might impact its duty to consult and accommodate. The Crown must provide decision makers with complete information, and decisions based on incomplete information may not be allowed to stand. This case demonstrates the strategic importance of raising beneficial new claim information with the Crown and decision makers.
