The First Nation of Na-Cho Nyäk Dun has been awarded $45,000 in legal costs following its successful challenge to a Yukon government mining-exploration decision, with the court finding that the litigation’s treaty significance and complexity justified more than a routine tariff-based calculation.
In First Nation of Na-Cho Nyäk Dun v. Yukon (Government of), 2026 YKSC 36, released May 14, 2026, Chief Justice S.M. Duncan of the Supreme Court of Yukon fixed an all-inclusive amount covering fees, disbursements and tax. The award is litigation costs, rather than compensation for environmental damage or a new ruling on whether exploration may proceed.
Costs after a land-use planning dispute
The underlying judicial review concerned a government decision allowing a Metallic Minerals Corp. exploration proposal in the Tsé Tagé, or Beaver River, watershed to advance to the regulatory approval and permitting stage. The proposal contemplated exploration activities every year for 10 years in the First Nation’s traditional territory.
The same area was subject to a land-use planning process between the First Nation and Yukon. One objective was to promote development without undermining the ecological and social systems on which the First Nation’s citizens and culture depended.
The First Nation successfully opposed two government motions to strike parts of its case or evidence, and succeeded on the judicial review. The costs application covered those motions and the underlying proceeding, involving 2.5 days of court time, together with three scheduling conferences.
There had also been an intervening appeal. In 2024 YKCA 5, the Court of Appeal upheld the order setting aside the government decision and returning the proposal for reconsideration. It removed two separate declarations because they added no practical utility to that result, but retained the declaration addressing good-faith performance of the intergovernmental land-use planning agreement. The May 2026 decision resolves the costs question at the Supreme Court level.
Neither the full bill nor a rigid tariff
The First Nation sought $75,000 in partial-indemnity costs, relying on a bill of costs and actual legal fees exceeding $175,000. Yukon accepted that costs could be fixed as a lump sum but argued for a substantially lower, tariff-based amount.
Chief Justice Duncan explained that partial-indemnity costs ordinarily cover only part of a successful party’s legal expenses. Courts must balance fair compensation with access to justice: requiring the loser to pay every dollar could discourage people from asserting or defending their rights.
The usual tariff assigns units to litigation steps and applies different rates according to the proceeding’s difficulty. But Rule 60(1) also allows a lump-sum award. That can avoid a detailed accounting exercise that itself consumes time and money, provided the amount remains reasonable and principled.
Here, the judge treated the tariff as a starting point rather than a ceiling. The litigation addressed important questions about constitutionally protected modern treaties and land-use planning rights, and contributed to understanding how those treaties advance reconciliation. The successful defence of both motions to strike, the complexity of gathering evidence and the legal arguments also mattered.
The court placed the award well below the First Nation’s request but above Yukon’s proposal. The judge described $45,000 as approximately one-quarter of the First Nation’s actual legal fees. Concern about the losing party’s ability to access justice carried less weight because the respondent was the territorial government, with resources to answer the petition.
Unlabelled settlement material remained privileged
The court also declined to consider an earlier bill of costs that the First Nation had provided while trying to resolve costs without a ruling. Yukon attached it to its submissions and commented on specific items.
Although marking the bill privileged or without prejudice would have been better practice, the judge found that the settlement context protected it. She disregarded both the bill and Yukon’s related comments.
The result illustrates a contextual approach to litigation costs: a tariff can guide the assessment without dictating it, and settlement privilege can depend on the purpose of a communication rather than its label. It does not establish an automatic percentage recovery for treaty litigation or reimburse all of the First Nation’s expenses.
