The Yukon government and the Yukon Environmental and Socio-economic Assessment Board (YESAB) are in a court dispute over the board’s recommendation against a mineral exploration project in the Peel Watershed region.
A judicial review of the board’s recommendations was presided over by Chief Justice Suzanne M. Duncan beginning on Nov. 27
YESAB's recommendations, issued last year, stated that the project would likely have "significant adverse environmental and socio-economic effects in or outside Yukon" that could not be mitigated.
The recommendation’s assessment indicated that the project's proponent, Silver47 Exploration, failed to comply with the Peel Watershed Regional Land Use Plan for providing environmental baseline data. The document recommendations stated that non-compliance limited the designated office's ability to create effective measures against adverse effects on wildlife and First Nation wellness.
The Peel Watershed Planning Commission, referred to in court, is made up of six people nominated by the Na-Cho Nyäk Dun, Tr’ondëk Hwëch’in, Gwich’in Tribal Council, Vuntut Gwitchin and Yukon governments to develop the region’s land use plan.
The Peel Watershed region, where the Michelle Creek project is located, traditionally spans the territories of four First Nations: the Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, Vuntut Gwitchin, and the Tetlit Gwich’in from the neighbouring N.W.T.
Na-Cho Nyak Dun and Tr’ondëk Hwëch’in are listed as Indigenous governments on the project’s YESAB registry page. Lawyers from both First Nations made submissions to the court at the Nov. 27-29 judicial review.
Na-Cho Nyak Dun was represented by lawyers Nuri Frame and Tasha Paramalingam, while Tr’ondëk Hwëch’in was represented by lawyer Micah Clark.
On Nov. 27, I.H. Fraser, representing the Yukon government, opened the court with submissions critiquing YESAB’s assessment methodology. He argued that it failed to comply with specific legal frameworks, lacking guidelines for distinguishing between exploratory and developmental activities.
He further contended that although the Yukon Environmental and Socio-economic Assessment Act isn’t a complete code, the designated office could have made these distinctions by following the Yukon’s Quartz Mining Act, where such guidelines exist.
Fraser noted that YESAB is not obligated to provide legal advice, but the proponent was unaware of their obligations to provide the board with environmental baseline data at this stage of exploratory activities.
He also argued that the designated office lacked the authority to determine whether the proposal conformed to the Peel Plan, stating it was premature to make such a determination at this stage in the process.
Fraser characterized the assessment methodology as flawed and sought to have the recommendations quashed, arguing that they were unreasonable.
On Nov. 27, Silver47's lawyer, Joshua Jantzi, followed Fraser's submissions. Jantzi argued that inconsistencies in the application of statutory regulations for providing environmental baseline data frustrated the process, causing a misunderstanding of the data's importance at this early stage.
He sought procedural fairness, highlighting that the exploration covers multiple sites and that collecting baseline data could take years. Jantzi characterized the recommendation’s assessment as unfair and unreasonable.
On Nov. 28, Clark, representing Tr’ondëk Hwëch’in First Nation, informed the court that the definitions of exploration and development are found in the Peel Watershed Regional Land Use Plan, which he claimed YESAB referenced.
Clark highlighted that while the Yukon Environmental and Socio-economic Assessment Act grants statutory authority to request information, it does not hold authority to deny a project to go ahead.
YESAB's recommendations are submitted to the decision bodies, which are the Yukon government and Fisheries and Oceans Canada. In this case, YESAB has recommended that the project not proceed.
Clark argued that the board could not credibly assess environmental and socio-economic effects without the adequate baseline data needed to develop mitigations for adverse impacts. The proponent asserted that this data would be collected at a later stage during the exploration.
Demonstrations rallying in support of protecting the Peel Watershed region took place during the judicial review in Whitehorse, Dawson and communities in the N.W.T.
On Nov. 27, individuals from organizations who were solicited for their views and information during the board’s assessment joined a rally outside the Yukon Supreme Court. Demonstrators voiced frustrations over the Yukon's decision to challenge the board’s recommendations, insisting the recommendations fell in line with the Peel Watershed Regional Land Use Plan.
On Nov. 28, Frame, representing Na-Cho Nyak Dun First Nation, put forward his submissions before the court.
Frame opened his submissions by acknowledging the plaintiffs’ examinations of YESAB’s statutory authority but pointed toward aspects of the matter relating to treaty rights.
He argues that YESAB's recommendations are appropriate for protecting the wellness of Yukon First Nation people under the Umbrella Final Agreement. He emphasized that this underscores the authority of First Nations in co-managing lands, as seen in the Peel Plan.
Chief Justice Duncan noted that several exchanges between YESAB and Silver47 indicates the proponent not fully comprehending the crucialness of delivering the baseline data at this stage.
Frame suggested to the court that once exploration activities, such as helicopters flying overhead, drilling operations, and erecting camps, disturb a baseline, it loses its value as scientific data for the board to develop adequate mitigations later on.
"I would love to have the baseline data before the Klondike Goldrush," Frame said.
He highlighted that the Michelle Creek project is the first assessment conducted under the Peel Watershed Regional Land Use Plan, suggesting the importance of collecting baseline data early on.
The judicial review is set to continue Friday Nov. 29 after the News' publication deadline with opening submissions expected from the legal counsel for the Attorney General of Canada.
Chief Justice Suzanne M. Duncan is expected to make a decision following the last submissions from YESAB on Nov. 29.
Contact Jake Howarth at jake.howarth@yukon-news.com
