The Yukon Supreme Court has dismissed the Yukon government's case against the Yukon Environmental and Socio-economic Assessment Board’s (YESAB) recommendation to stop the first mineral exploration project in the Peel Watershed region from proceeding.
Chief Justice Suzanne Duncan issued the ruling in a written decision published on March 4. The court dismissed the Yukon government's request for a judicial review on procedural grounds, stating it was not appropriate for review by the court at this stage.
Duncan reasoned that YESAB’s recommendation is part of an ongoing process and not a final decision. While it assists the Yukon government in making a decision on the Michelle Creek project, the recommendation itself does not carry legal consequences or obligations.
The recommendation against the project was made by YESAB’s designated office in Dawson after it received a proposal submitted by the project’s proponent, Silver47 Exploration. The designated office in Dawson alleged that the proposal failed to mitigate impacts on wildlife and First Nation wellness by not providing the assessment board with adequate baseline data.
The Yukon government argued that the recommendation was flawed due to misinterpretations of data collection methods, which they allege undermined the government’s ability to make an informed decision. Additionally, the government claimed that the designated office exceeded its authority by determining that the project did not conform to the Peel Watershed Regional Land Use Plan.
The Peel Watershed Regional Land Use Plan, often referred to in court, was designed by a group of six individuals nominated by the Na-Cho Nyäk Dun, Tr’ondëk Hwëch’in, Gwich’in Tribal Council, Vuntut Gwitchin and the Yukon government. Its purpose is management of land and resources in the Peel Watershed region.
Duncan added that her ruling did not factor in the merits of arguments submitted before the court because the recommendation was part of an ongoing process. She wrote that it would be inappropriate for the court to evaluate the case's merits without the entire administrative process being subject to judicial review.
“The statute (Yukon Environmental and Socio-economic Assessment Act) does not contemplate court intervention at this stage. Further, any findings I make on the substantive arguments may compromise a future decision, or a future judicial review on a different record,” Duncan wrote.
Duncan highlighted the importance of allowing the administrative process to run its course without premature judicial intervention, adding that the Yukon government can address any perceived flaws in the recommendation during its decision-making process.
“The Yukon government seeks a court order at this stage that the designated office report and recommendation in this case be quashed and the matter be reconsidered by the designated office. To do so would violate the principle of judicial respect for administrative decision-makers and an administrative process containing various steps set out by Parliament,” Duncan wrote.
In a press release dated March 5, the Trʼondëk Hwëchʼin First Nation responded to the Yukon Supreme Court decision, stating that the ruling is a positive step towards thoughtful land use planning in the Yukon and Trʼondëk Hwëchʼin traditional territory.
“It took many years of work and many court challenges before the Peel Plan was finally approved, and yesterday’s court decision builds on the significant effort of Yukon First Nations and all Yukoners to ensure that the Peel Plan is properly and honourably implemented. This is a win for Trʼondëk Hwëchʼin and for land use planning under our treaty,” wrote Tr’ondëk Hwëch’in’s deputy chief, Erin McQuaig.
Legal representatives from the Yukon government, Silver47 Exploration, Tr’ondëk Hwëch’in First Nation, the attorney general of Canada, YESAB and Na-Cho Nyak Dun First Nation submitted arguments before the court in November 2024.
The court heard arguments that the absence of baseline data limited the designated office’s ability to develop terms and conditions to mitigate significant adverse effects on wildlife and First Nation wellness. The court also heard arguments that the project did not adhere to the Peel Watershed Regional Land Use Plan, which they argued requires baseline data collection before any industrial development activities, including exploration.
First Nation respondents concluded their arguments by asserting that the project would cause significant adverse effects on wildlife and First Nation wellness, which could not be mitigated without the baseline data. The lack of this data allegedly made it impossible to develop effective mitigation measures.
The Yukon government argued that YESAB’s designated office was unreasonable and procedurally unfair in determining its recommendations. The government argued that the designated office acted in a procedurally unfair manner by not providing proper notice to Silver47 about the need for baseline data, arguing that the recommendation should be quashed and reconsidered.
Contact Jake Howarth at jake.howarth@yukon-news.com
