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The line between water and mineral

The Yukon Territorial Water Board should not concern itself with mining specifics when reviewing projects for licensing, according to Carmacks Copper Ltd.

The Yukon Territorial Water Board should not concern itself with mining specifics when reviewing projects for licensing, according to Carmacks Copper Ltd.

The mining company is in Yukon Supreme Court challenging the water board’s decision to deny it a licence.

That’s landed the board, the Yukon government, the Little Salmon/Carmacks and Selkirk First Nations and the Yukon Conservation Society in court.

The legal challenge involves a lot of paper. For the last four days, the reams of documentary evidence have been painstakingly reviewed on a large television screen and five computer monitors placed before the seven lawyers arguing the case.

“There are two issues here. There are the mining issues and the water issues,” said Brad Armstrong, Carmacks Copper’s lawyer. “The mining issues are for the other ministry - and they’ve already dealt with this.

“Where’s the division between the mining facilities and the water facilities? And that’s really what the case is about. Which regulator deals with which aspect of the project?”

The proposed mine is 30 kilometres downstream from Carmacks. When it came before the water board in February and March, the project had been given the green light by the Yukon government and the Yukon Environmental and Socio-Economic Assessment Board.

Because of that, the water board should not have concerned itself with the project’s heap-leach technology, which proposes dousing mounds of raw rock with cyanide to leach out the copper.

However, the assessment board was uncertain of the heap-leach technology, said Arthur Pape, the First Nation’s lawyer.

The board ordered a field-scale trial. However, the water board’s decision notes the testing wouldn’t occur until three or four layers of full-scale heap for the mine would have been in operation, said Pape.

“This is a very unusual case,” he said. “It’s very unusual for a water board to not grant a licence at all. Usually they’re trying to find terms and conditions that will do their best to make sure everything will be OK. But here they said the problems are so serious, we’re not going to issue a licence.

“The company came to the court and said, ‘Ignore all that. It’s none of the water board’s business.’ And we said, ‘That’s crazy. This is exactly what the water board’s supposed to do.’ If this mine turns out not to work the way it’s supposed to, there’s going to be very serious pollution problems for water, and that’s why the water board refused to give it a license and that’s what the water board’s supposed to do.”

The court case has implications beyond Carmacks Copper, said Laurie Henderson, the Yukon government’s lawyer.

Depending on what Justice Ronald Veale decides, the authority environmental assessments have and who is authorized to enact them could be changed.

“As long as it’s acting within its statutory authority, it has discretion to decide whether a water licence will or will not be issued,” said Laurie Henderson of the water board.

The Yukon government has not taken any position on the board’s decision or the company’s orders, she said.

Veale adjourned Thursday, stating he would issue his decision in due time.

Many of the seven lawyers who were arguing the case do not expect it until the new year.

Contact Roxanne Stasyszyn at