The Tsetsaut Skii km Lax Ha Nation (TSKLH) has applied to the British Columbia Supreme Court for judicial review of the province’s decision to grant a substantial start determination (SSD) for Seabridge Gold's KSM mine project.

The First Nation argues that the provincial government has failed to engage in meaningful consultation, despite the planned location of the mine's waste facilities being within its traditional territory.

The KSM project, located in the wilderness of north-western British Columbia, is poised to become a large gold, copper, and silver mine. However, the TSKLH is raising concerns over the environmental risks posed by the mine’s proposed tailings waste storage that would sit near vital natural waterways used by the nation for sustenance and cultural practices.

"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," said Ryan Beaton, legal counsel for the Nation. "They have obligations under the Constitution and UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples] to meaningfully engage with the Nation about those concerns and have failed to do so."

The region in question is also the subject of an active land claim by the TSKLH, adding another layer of legal complexity to the situation. By granting the SSD, the province has effectively given the green light for the mine to move forward without adequately addressing the Nation's concerns about its environmental impact.

Seabridge Gold's KSM project has garnered significant support from other Indigenous groups, notably the larger Tahltan and Nisga'a Nations, which have signed agreements with the company. However, the TSKLH argues that their voice has been excluded from discussions regarding the potential environmental risks posed by the project.

"There is no basis in law for the province and Seabridge to consult and accommodate only larger First Nations," Beaton said. "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."

TSKLH argues that it is not just a matter of local ecology, but a threat to their way of life.

"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," said TSKLH Chief Darlene Simpson.

TSKLH says its concerns are shared by the Southeast Alaska Indigenous Transboundary Commission, a coalition of 15 Alaskan Tribes who have expressed alarm over the potential transboundary impacts of the KSM mine. The commission has raised concerns that the mine’s wastewater could flow downstream into the rivers of Southeast Alaska, affecting ecosystems and communities far beyond Canada’s borders.

In its response, Seabridge states that the SSD 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. TSKLH may not agree with the ultimate 'substantially started' determination, but Seabridge is confident that there is ample evidence that the determination was reasonable,” said chairperson and CEO Rudi Fronk.

“Seabridge plans to participate in defending the validity of the 'substantially started' determination and will be conferring with its legal counsel on the ways in which it may do so,” he said.

Seabridge notes that the SSD is unaffected by the petition and will remain in place if the province successfully defends determination.

“Even if TSKLH is successful, a typical order in these circumstances would require the environmental assessment office 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. We are advised that a final decision on the TSKLH Petition could take a year or more,” said Fronk.

TSKLH is claiming an extensive traditional territory in northwest British Columbia, including the area of the KSM project, and it contests rights of the Nisga'a Nation and Tahltan Nation over the area of the eastern side of the KSM project.

The KSM project has the third-biggest undeveloped copper resource in the world as well as the largest gold resource. Copper has been designated as a critical mineral required by British Columbia and Canada to assist in the transition to a greener future and KSM is poised to make a significant contribution to this need.