Northern Cross has filed an application with the Federal Court of Canada for a judicial review of a recent decision by the Yukon Environmental and Socio-economic Assessment Board to refer its Eagle Plain oil-and-gas exploration project to a higher level of assessment.
The application, filed on Thursday, asks the court to find that YESAB’s designated office acted beyond its jurisdiction and failed to observe procedural fairness.
Northern Cross submitted its proposal to drill up to 20 wells in the Eagle Plain basin in July 2014.
Last month, YESAB decided it didn’t have enough information to determine how the project would affect the Porcupine caribou herd, and referred Northern Cross to executive committee screening. The company would have had to resubmit the same proposal or a modified version, and start the assessment process over again.
Executive committee screening is a more rigorous assessment that involves First Nations consultation from the start.
“We weren’t very happy with the decision to refer this to executive committee after 20 months of a review in the designated office,” said Northern Cross President Richard Wyman.
He said Northern Cross has made five other submissions for similar exploration activities to YESAB since 2007, and all five were approved subject to conditions.
But in this case, YESAB decided it couldn’t determine “if adverse effects to the access to and use of the Porcupine caribou herd are or are not significant.”
Northern Cross takes issue with that conclusion. In its application for judicial review, the company says it wasn’t given a chance to respond to concerns about access to the herd, specifically those raised by the Porcupine Caribou Management Board.
The company says it could have provided the missing information, but it was told by YESAB on Dec. 10 that the board had enough information to make its decision.
It says the PCMB submitted concerns to YESAB on Dec. 15, after the public comment period had ended, which was against the rules.
Wyman said those submissions “raised a number of points that had not previously been raised explicitly. And we were not given an opportunity to respond.”
Joe Tetlichi, chair of the PCMB, has previously told the News that Northern Cross never approached the board to discuss possible impacts on caribou.
“Since they’re the ones that want to do activity on the habitat … you would think they would send us an invitation to sit down,” he said in February.
Wyman said he doesn’t expect the federal court to order YESAB to approve the project.
“I think we would get some kind of a framework for YESAB to complete the assessment,” he said.
Wyman wasn’t sure how long the process would take, but he said he thought there might be a decision later this year.
In a news release, Northern Cross also said it’s “prepared to discuss with YESAB any alternatives to a judicial review to complete the project screening in as expeditious and cost-effective manner as possible.”
YESAB wouldn’t comment directly on the judicial review, but spokesperson Rob Yeomans said the situation is “unprecedented.”
He said there have been a couple of judicial reviews of natural resource decisions in the Yukon, but YESAB has never been named.
Back in 2012, for instance, White River First Nation filed a judicial review against the Yukon government for mineral exploration proposed by Tarsis Resources.
YESAB had objected to the licence, but the government granted it anyway. The Supreme Court of Yukon eventually overturned that decision.
But Yeomans said he thinks this is the first judicial review filed before YESAB has made its decision on a project.
Northern Cross’s decision also seems to have prompted the Yukon government to speak out against YESAB.
“Generally, I feel that the YESAB process has kind of wavered and is creating problems for businesses in the Yukon,” said Economic Development Minister Stacey Hassard on Friday. “I have issues, I guess.”
The criticism follows similar indictments from the Yukon Chamber of Commerce and Chamber of Mines, which have both said that YESAB’s process has become too inefficient.
But it’s unclear what the Yukon government wants to see happen. “We need to work through the process with the First Nations and the feds to address the concerns,” Hassard said.
But he wouldn’t say whether he wants to see more changes to environmental assessment legislation.
Last year, the Harper government passed controversial changes to the Yukon Environmental and Socio-economic Assessment Act that introduced strict timelines, among other things.
The Liberal government has promised to repeal the bill.
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