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Judicial review of Yukon Water Board decision is first in at least a decade

Water board ordered to reconsider decisions about water and land use for placer mine
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The Yukon Supreme Court has ordered the Yukon Water Board to reconsider two decisions that denied licensing to a placer mine near Dawson. (Jim Elliot/Yukon News)

The Yukon Water Board has been ordered to reconsider its decisions that denied licensing to a placer mine near Dawson. Yukon Supreme Court Justice Adele Kent found that the board engaged in speculation when denying the water and land use licenses for the operation.

The company in question, Fellhawk Enterprises Ltd., holds placer claims on North Henderson Creek. In October 2021, the company applied for the licenses. The application was denied in July 2022, with the water board citing concerns about licensing the claim area when it overlapped with an area another company was already licensed for.

Fellhawk went to court appealing the refusal of the water license and seeking judicial review of the denied land use approval. The judge’s decision, released July 18, notes the water board has handled between 100 and 200 applications for land use and a similar number of water license applications over the past decade, but this is the first to undergo judicial review.

The court heard that Fellhawk had already been working on the claims in question with the approval of the other mining company for three years but applied for separate licensing because the other company’s claims are set to expire in 2025. Fellhawk’s licensing application came with the written approval of the other mining company.

Justice Kent’s decision noted the information on the water board’s frequently asked questions page, stating that the board would consider an application overlapping with the existing licensed area if certain conditions are met. Those conditions include a letter of agreement with the existing licensee and a detailed plan for how the two operations will coexist.

The Department of Fisheries and Oceans (DFO) expressed concerns about the approval of the overlapping licenses. The judge’s decision notes that DFO was aware that the mining operators had agreed to separate by more than eight kilometres but remained concerned that the agreement could be rescinded, that the companies could wind up working in the same area, and that monitoring and enforcement would be difficult.

The territorial government also provided submissions during the licensing process, stating that it did not have any concerns so long as Fellhawk complied with applicable legislation and followed an approved operating plan.

The judge’s decision draws on correspondence between Fellhawk and the water board filed with the court. In the correspondence, the mining company clarified how its operations would not conflict with the mining on the other claims in the valley. The court heard that Fellhawk provided a detailed map and answers regarding what activities would be taking place concurrently with the other company’s operations and potential project effects in the overlap area, among other matters.

Ultimately, the water board still opted to deny the application for the water license, stating that Fellhawk did not provide enough evidence that its proposed water use would not adversely affect the use of water by the other mining firm. The court heard that the other mining company Fellhawk had the agreement with was its nearest neighbour both upstream and downstream.

Kent’s decision found the board’s reasons for denying the water license inadequate. When considering both the water license and land use, the board speculated in the face of the information Fellhawk provided. Subjects of speculation highlighted in the judge’s decision included the consent of the other mining company to the arrangement, the proposed mitigation methods imposed by DFO and the government compliance, monitoring and inspections branch.

“Speculation about what might happen in the future can be appropriate so long that as that speculation is accompanied by reasons why it is likely to occur, or even if it is less than likely to occur, why the risk that it could occur is significant. Here, there is nothing,” the decision reads.

The judge remitted both decisions back to the water board for reconsideration.

Contact Jim Elliot at jim.elliot@yukon-news.com



Jim Elliot

About the Author: Jim Elliot

I’m a B.C. transplant here in Whitehorse at The News telling stories about the Yukon's people, environment, and culture.
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