Judge orders review of key approval for $5-billion KSM mine over First Nation consultation failures

An aerial view in 2020 of the Mitchell deposit, one of four in Seabridge Gold's KSM claim in remote northwestern B.C., where the company proposed to build a $6.7-million gold and copper mine.

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The B.C. Supreme Court has ruled that a key regulatory decision allowing the $5.3-billion KSM gold-and-copper mine to move ahead must be revisited because a First Nation wasn’t adequately consulted.

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In July 2024, the province determined that the project had “substantially started,” meaning its environmental approval certificate remains in place for the life of the mine.

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The Tsetsaut Skii km Lax Ha Nation and the SkeenaWild Conservation Trust had challenged the substantially started decision.

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If a project is determined not to be substantially started, it must complete a new, lengthy environmental assessment.

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B.C. Supreme Court Justice Emily Burke ruled that before the Environment Ministry reconsiders the substantially started decision, the province must consult with the Tsetsaut Skii km Lax Ha Nation, giving them 90 days’ notice to present written submissions.

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“We’re relieved the province is finally required 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, threatening our pristine traditional waterways,” Tsetsaut Skii km Lax Ha Chief Darlene Simpson said in a written statement.

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The KSM mine project, owned by Toronto-based Seabridge Gold and about 65 kilometres northwest of Stewart, in northwestern B.C., has been touted as one of the world’s largest undeveloped copper-and-gold projects.

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Seabridge chairman and CEO Rudi Fronk said in a written statement that work at KSM would continue during the consultation process and reconsideration of the substantially started determination.

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“We will continue to execute our work plans for KSM and look forward to meeting with the (B.C. Environmental Assessment Office) to receive an update on their additional consultation activities in due course,” said Fronk.

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The judge’s 65-page ruling noted that Seabridge had spent $444 million on work between 2021 and 2023 on six of the 32 physical components of the project, including an access road, camps, mine-site roads, fish habitat compensation, power infrastructure including a transmission line, and other clearing and earthworks on the site.

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Burke also noted that other factors can be considered such as money expended, regulatory compliance and consultations.

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The judge didn’t rule on whether the province’s decision that the project was substantially started was unreasonable but noted the province has significant latitude in making its decision.

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Even with a substantially started determination, for the KSM project to proceed to full-scale construction it still needs a major joint-venture partner to help with financing and operation, and a feasibility study proving its economic viability.