Fate of batch plant rests with judge

After two days of legal arguments, the McLean Lake Residents’ Association, the territory and the city have nothing left to do but wait.

After two days of legal arguments, the McLean Lake Residents’ Association, the territory and the city have nothing left to do but wait.

However, Yukon Supreme Court Justice Ron Veale didn’t say when he would hand down his decision.

Skeeter Miller-Wright, who represented the association, presented his arguments on Tuesday.

He argued that the city’s rezoning of the site and the territory’s approval of the land violated their own laws and regulations.

McLean Lake residents waited too long to submit their petition, argued Michael Winstanley, the lawyer for the territory, on Wednesday.

It had been 27 months since the environmental screening report was released.

There is a 15-year limitation period on petitions under the Environmental Assessment Act, but Winstanley argued that had been imposed because there is often no evidence of a problem until after a project has already been running for some time.

Veale dismissed the argument.

If the petitioners had brought it forward immediately it would have been considered premature, he said.

Miller-Wright’s issues were raised as early as 2004, Winstanley continued. Therefore the environmental screening report was done with those concerns in mind.

The territory looked at all the facts when making its decision, he said.

Winstanley then addressed the residents’ argument that the territory didn’t look at alternative sites, as it is required to under the Environment Act.

It’s not mandatory, said Winstanley.

Why would you look at an alternative site if there’s no significant adverse effects to an existing one, Winstanley asked the court.

“Well, I can think of a lot of reasons,” the judge replied.

The territory then argued that Miller-Wright had brought new complaints before the court that hadn’t been made at previous meetings.

If these complaints had been given to the territory earlier, they could have been taken into account.

“If it was very serious, it wouldn’t have mattered,” replied Veale.

Next the city pleaded its case.

Whitehorse’s Official Community Plan is only a guideline for city planners, city lawyer Lori Lavoie argued.

Council is not obliged to follow the city plan as it’s not a bylaw.

If the court decided that the city did have to follow the plan, as the McLean Lake residents have asserted, then the city would argue that it had.

In the Official Community Plan, the area was planned for natural resource extraction.

The bylaw implemented by council changed the 5.6 hectares from a “future development” zone to “quarry.”

Thus the zoning became more consistent with the plan.

She then pointed out that “Squatter’s Row,” where most of the petitioners live, is situated on land designated natural open space.

“It is difficult, unpalatable even, for those residents to argue bad planning,” she said.

Lavoie defended the city’s decision to not do a hydrological assessment.

She argued that so little water would be used by the batch plant that the assessment wouldn’t make sense.

The plant wouldn’t use that much water but a quarry means digging a large hole and that may have a big impact on the spring-fed lake nearby, said Miller-Wright.

The loss of insulation in the ground due to the hole could also affect the temperature of the lake, which could harm marine life, he added.

Before Justice Veale ended the proceedings, Miller-Wright asked that he not take too long to come to a decision.

“The development is proceeding.”