Northern Cross was in court April 24 and 25 arguing the Yukon Environmental and Socio-economic Assessment Board broke its own rules when it referred the company’s Eagle Plains oil and gas project to a higher level of screening.
The company is asking Canada’s federal court to send the project back to an earlier stage of assessment.
In early 2016 YESAB’s designated office ruled it couldn’t determine how exploratory drilling would affect the Porcupine caribou herd and referred the project to an executive committee screening.
Northern Cross’s lawyer Brad Armstrong said the company was surprised by the designated office’s final report.
While Northern Cross specified the area affected would be 325 square kilometres, the report defined the scope as 700 square kilometres.
Armstrong said YESAB breached its own rules.
“(They) must conduct assessment in accordance with the scope,” he said.
The final report also listed six areas where “additional information would have been helpful,” Armstrong told the court.
But he criticized YESAB for not asking Northern Cross for that information.
He also criticized the fact the YESAB evaluator relied on 12 documents he found though his own research that were not on YESAB’s public record.
“All the information has to go on the registry,” he said. “It’s a breach of the rules of procedural fairness.”
The company also took issue with the fact the Porcupine Caribou Management Board was allowed to file a report after the December 2015 deadline and the company wasn’t asked to provide comments about the report.
But Suzanne Duncan, lawyer for the federal government, said there were no surprises.
“All these issues were addressed throughout process — it shouldn’t come as a surprise.”
Throughout the 19-month process, YESAB made four different information requests because it wasn’t satisfied with some of the answers the company gave.
Eventually the designated office had to end the process, because of time constraints set in the act and information it didn’t get, Duncan said.
“It wasn’t satisfied with the answers and felt a more thorough process was required,” she said.
The executive committee has longer timelines to make a decision but also other tools the designated office doesn’t have, for example sharing draft reports with the those involved in the project.
Two recurring concerns were how the company was going to deal with caribou activity near the work sites and how hunting rights would be affected.
During the process the Tr’ondek Hwech’in First Nation expressed concerns about hunting rights after the Northern Cross’s CEO filed an affidavit saying that the “First Nation could hunt elsewhere (in the traditional territory).”
The First Nation of Nacho Nyak Dun was concerned about the company eliminating a technical working group about mitigating the impact on the herd.
There were also concerns about how the company was going to monitor the herd’s movements. It didn’t want to use aerial survey but rather track via GPS movements of collared caribou.
The mitigating plans to deal with caribou coming near the drill site included measures to reduce and slow down traffic but the drilling wouldn’t be stopped, Duncan said.
Those plans mentioned “adaptive mechanisms” to deal with caribou but there were no precise descriptions of those mechanisms, she said.
On the issue of the scope of the project, Duncan said it was up to YESAB to determine what the scope of the project was based on the activities proposed.
There were two drilling wells outside the border shown in maps Northern Cross filed to the board, she said.
But for Armstrong, it was crucial for the company to respond to the PCMB report because it contained new information.
The report described that in November 2015, about 50,000 caribou were seen migrating through part of the project area.
Justice Keith Boswell reserved his decision.
Even if the federal court sides with the Northern Cross, it’s not clear what will happen given that the company is also suing the Yukon government claiming it can’t drill in Eagle Plains because of a fracking moratorium.
Contact Pierre Chauvin at firstname.lastname@example.org