Yukon Water Board backs down in jurisdictional squabble with government

The Yukon Water Board has backed down in a fight against the Yukon government, recognizing it overstepped its jurisdiction.

The Yukon Water Board has backed down in a fight against the Yukon government, recognizing it overstepped its jurisdiction.

Last September, the government took the water board to court after the board refused to follow an order by the territory’s mining branch.

Instead it issued a water licence to a placer miner that followed conditions proposed by the territory’s environmental and socio-economic assessment board, YESAB.

As soon as the board contacted its lawyer, it realized the government was right, the board’s acting director told the News.

“The board were advised … ‘you’re not going to win, you might just agree and change it,’” Neil Salvin said.

Northern Exposures Inc. was seeking to mine 332 claims along the Indian River, 35 kilometres south of Dawson City. The Indian River is a tributary of the Yukon River.

In February 2016, YESAB recommended that Northern Exposures not mine or develop infrastructure in undisturbed wetlands.

The company could apply to amend that condition as long as it could provide information about the wetlands and the level of “acceptable change” the project would cause.

In March the mining branch changed that condition, requiring the mining company submit a reclamation plan for the wetland area.

The branch would then decide whether to approve it and the company would have to follow that plan when working on mined areas.

But that July, the water board decided to issue a licence to Northern Exposures that said the company can’t “disturb or alter any undisturbed, naturally occurring wetlands.”

“In its deliberations, the board agreed with the conclusions of the YESAB evaluation report … that there would be cumulative significant adverse effects on the wetlands,” the water board wrote in its July decision.

The Yukon government’s change to the condition proposed by YESAB doesn’t mitigate these impacts, it added.

That provision has now been removed from the water licence.

On Jan. 26, Yukon Supreme Court ordered the licence modification with the consent of both parties.

Randy Clarkson, the agent for Northern Exposures, questioned why the water board tried to go against the government in the first place.

“They managed to waste a lot of everyone’s time and lawyers’ fees on the hearings to correct their actions,” Clarkson told the News.

But Salvin said the case brought new legal clarity to the territory’s assessment legislation, YESAA.

“At the beginning of YESAA, we did have some debates and legal opinions from many different people and of course they always come back different (from one another),” he said.

The question for the board, Salvin said, was whether to copy the mining branch’s order into the water licence or whether to write new conditions that follow the government’s intent.

In this case, because the Tr’ondek Hwech’in First Nation intervened in the case during the assessment and raised concerns about the wetland, the board thought it could change the licence, Salvin said.

“(But) I don’t think it alters the board’s opinion about protection of wetlands outlined in the reasons, just their legal jurisdiction to do so.”

Northern Exposures can’t start mining just yet. The company still has to file reclamation plans to the government for approval.

“Northern Exposures already filed a wetland reclamation plan for the western portion of its claims and it was accepted,” Clarkson said.

“But I don’t know exactly what will be required for the eastern portion of its claims. “

The Yukon Water Board has backed down in a fight against the Yukon government, recognizing it overstepped its jurisdiction.

Last September, the government took the water board to court after the board refused to follow an order by the territory’s mining branch.

Instead it issued a water licence to a placer miner that followed conditions proposed by the territory’s environmental and socio-economic assessment board, YESAB.

As soon as the board contacted its lawyer, it realized the government was right, the board’s acting director told the News.

“The board were advised … ‘you’re not going to win, you might just agree and change it,’” Neil Salvin said.

Northern Exposures Inc. was seeking to mine 332 claims along the Indian River, 35 kilometres south of Dawson City. The Indian River is a tributary of the Yukon River.

In February 2016, YESAB recommended that Northern Exposures not mine or develop infrastructure in undisturbed wetlands.

The company could apply to amend that condition as long as it could provide information about the wetlands and the level of “acceptable change” the project would cause.

In March the mining branch changed that condition, requiring the mining company submit a reclamation plan for the wetland area.

The branch would then decide whether to approve it and the company would have to follow that plan when working on mined areas.

But that July, the water board decided to issue a licence to Northern Exposures that said the company can’t “disturb or alter any undisturbed, naturally occurring wetlands.”

“In its deliberations, the board agreed with the conclusions of the YESAB evaluation report … that there would be cumulative significant adverse effects on the wetlands,” the water board wrote in its July decision.

The Yukon government’s change to the condition proposed by YESAB doesn’t mitigate these impacts, it added.

That provision has now been removed from the water licence.

On Jan. 26, Yukon Supreme Court ordered the licence modification with the consent of both parties.

Randy Clarkson, the agent for Northern Exposures, questioned why the water board tried to go against the government in the first place.

“They managed to waste a lot of everyone’s time and lawyers’ fees on the hearings to correct their actions,” Clarkson told the News.

But Salvin said the case brought new legal clarity to the territory’s assessment legislation, YESAA.

“At the beginning of YESAA, we did have some debates and legal opinions from many different people and of course they always come back different (from one another),” he said.

The question for the board, Salvin said, was whether to copy the mining branch’s order into the water licence or whether to write new conditions that follow the government’s intent.

In this case, because the Tr’ondek Hwech’in First Nation intervened in the case during the assessment and raised concerns about the wetland, the board thought it could change the licence, Salvin said.

“(But) I don’t think it alters the board’s opinion about protection of wetlands outlined in the reasons, just their legal jurisdiction to do so.”

Northern Exposures can’t start mining just yet. The company still has to file reclamation plans to the government for approval.

“Northern Exposures already filed a wetland reclamation plan for the western portion of its claims and it was accepted,” Clarkson said.

“But I don’t know exactly what will be required for the eastern portion of its claims. “

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

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