Liard First Nation takes YESAB to court over Selwyn Chihong

The Liard First Nation is trying to block a Chinese-backed exploration program in southeast Yukon over pollution concerns. "The environmental assessment failed to properly assess the impacts of the release of wastewater into Don Creek," said Chief Liard McMillan in a news conference Thursday morning, with two Kaska elders at his side.

The Liard First Nation is trying to block a Chinese-backed exploration program in southeast Yukon over pollution concerns.

“The environmental assessment failed to properly assess the impacts of the release of wastewater into Don Creek,” said Chief Liard McMillan in a news conference Thursday morning, with two Kaska elders at his side.

The Yukon Environmental and Socioeconomic Assessment Board (YESAB) failed to properly assess the entire Howard’s Pass mining project because it passed on some of its work to the Yukon Water Board, the First Nation claims in a civil suit filed Tuesday.

The assessment board is mandated to provide a “full and complete assessment” of a project, said Drew Mildon, a lawyer with Victoria-based Woodward and Company, who has picked up Liard First Nation’s case.

“It’s about how you interpret YESAB,” said Mildon, whose face was projected onto a screen behind McMillan and the elders during the conference.

YESAB and the water board have worked in tandem on projects for years, but it’s not clear how they govern their relationship.

The assessment board is not commenting on the case until its legal team peruses Liard First Nation’s claim, said spokesperson Rob Yeomans.

Not unlike previous assessments, YESAB approved the Howard’s Pass exploration project with the caveat that the water board has to approve sometime in the future how drainage water will be handled.

The exploration program, which will require digging up around 200,000 cubic metres of ore and laying it in waste rock piles, includes letting water from the site drain into Don Creek, a tributary of the Pelly River.

That draining is what YESAB is letting the water board assess.

As of yesterday, the water board was still looking at the impacts of the exploration program.

But the Liard First Nation wants to stop the current practice of having two regulatory processes.

Only YESAB should be providing the full assessment, says the First Nation claim in its judicial review of the YESAB recommendation.

The First Nation did its own environmental review of YESAB’s recommendation with the help of consultant Bill Slater.

Slater’s critical view on the YESAB process is being used to back up the First Nation’s case.

A favourable decision in the First Nation’s favour would effectively bring the Howard’s Pass project, owned by Selwyn-Chihong, back to the drawing board.

This case is not the only one dealing with an interpretation of YESAB currently before the court.

Western Copper took the water board to court earlier this year because it didn’t approve the mine’s production program.

But that was after YESAB had approved it.

Western Copper is arguing that YESAB is the final regulatory body in the Yukon, and the water board must fall in line.

So, if the courts agree with Liard First Nation and Western Copper, one mine would go ahead while the other falters.

It’s not uncommon to have multiple cases related to the same issue before the court simultaneously, said Mildon.

“It’s often the case that you have two questions of law before the courts at the same time and you might get one decision you don’t like,” he said.

A hearing with the Supreme Court is scheduled for December 14.

Contact James Munson at

jamesm@yukon-news.

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