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The Tsetsaut Skii km Lax Ha (TSKLH) Nation has applied to the BC Supreme Court for judicial review of the province’s decision to issue a substantial start determination (SSD) for the KSM gold-copper project belonging to Seabridge Gold (TSX: SEA; NYSE: SA).
“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,” says Ryan Beaton, legal counsel for the Nation.
“They have obligations under the constitution and UNDRIP to meaningfully engage with the Nation about those concerns and have failed to do so.”
The TSKLH Nation claims an extensive traditional territory in northwest BC, including the area of the KSM project, and it contests right of the Niga’s Nation and Tahltan Nation over the area of the eastern portion of the project.
Under the BC Environmental Assessment Act, a project’s Environmental Assessment Certificate (EAC) expires if the project has not been substantially started by the deadline specified in its EAC. However, the BC Minister of Environment and Climate Change Strategy may determine that a project has been “substantially started” before the deadline, in which case the EAC is no longer subject to expiry. KSM’s EAC deadline was July 29, 2026.
In response to the company’s application submitted on January 16, 2024, the Chief Executive Assessment Officer (CEAO) determined that the KSM project was “substantially started” on July 25, 2024.
The TSKLH wants the province to declare that it failed to fulfill its duty to consult with them, and the Nation wants an order reversing the declaration on those grounds.
For its part, Seabridge said it did provide the TSKLH Nation with a copy of its application for SSD the day after it was filed in January 2024. The Nation asked several times for in-depth consultation, and the province said it would consult with them. TSKLH had 30 days to review the draft report issued by the BC Environmental Assessment Office, and the Nation did make its views known.
At this point, Seabridge does not have access to the record of consultation between the province and the TSKLH Nation, and is therefore unable to offer a fully informed view on the merits of TSKLH’s claims.
“Seabridge’s application for a substantially started determination was widely supported by the communities of northwest British Columbia, including Indigenous communities. TSKLH were provided the relevant information early and participated in the province’s review process, including submitting comments for the province’s consideration,” said Seabridge chair and CEO Rudi Fronk.
“TSKLH may not agree with the ultimate substantially started determination, but Seabridge is confident that there is ample evidence that the determination was reasonable.”
He added that the company will participate in defending the validity of the SSD.
The SSD is unaffected by the TSKLH’s petition and will remain in place if the province successfully defends the SSD. Even if TSKLH is successful, a typical order in these circumstances would require the EAO to return to its substantially started determination process, either to expand consultation of TSKLH or reconsider the reasons for its determination, and then a fresh determination would be issued.
Seabridge has been advised that a final decision on the TSKLH petition could take a year or more.
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