Yukon gov't accuses water board of overstepping its authority in wetland mining case

Another dispute over mining and the environment in Yukon has landed in the courts with the territorial government appealing a decision by the Yukon Water Board it says the board had no authority to make.

The government has filed the legal challenge in Yukon Supreme Court.

It began with an application in 2015 to the Yukon Environmental and Socio-economic Assessment Board by a family-owned placer mining company, Northern Exposures Inc., to begin mining claims it had purchased on the Indian River and Ruby Creek.

The screening agency recommended that the company not be allowed to mine undisturbed natural wetlands.

The government disagreed and said the company could mine the wetlands as long as it put a reclamation plan into place that would leave the mined areas "in conditions conducive to natural re-establishment over time of wetland habitat."

But when the Yukon Water Board issued a 10-year water licence and land use approval in July it said, it "is not authorizing any disturbance or alteration to undisturbed, naturally occurring wetlands. This includes any activities outside the undisturbed wetland areas that could affect the wetlands."

Decision rendered 700 mining claims 'valueless'

That was unfair, according to Randy Clarkson, who is acting as agent for Allen McGregor, the owner of Northern Exposures, of Lac La Biche, Alta.

"He recently purchased the claims; he's just finally finished paying for them. There's about 700 claims there and the water board decision rendered them valueless because he's not allowed to mine any undisturbed wetlands," said Clarkson.

 "The wetlands comprise all the low areas, the areas where there would be high probability of finding placer gold."

Water board says it needs more information

The water board, like the territorial government, is not commenting on the matter as it's now in the court.

But in the reasons for its decision, it notes the territorial government could help the board by developing and approving a wetlands policy or a land use plan regulating wetland disturbance. The board also said it needs baseline information including the cumulative effects of ripping up peat bogs to get at the gold underneath.

There should be far more information available about wetlands in Yukon before any more development in wetlands is allowed, according to Sebastian Jones, an analyst for the Yukon Conservation Society.

"They are the result of peat building up over the course of tens of thousands of years and that has produced this particular type of wetland," said Jones.

"And if it were to be mined, like parts of this wetland have already been mined in the Indian River, then it would be converted to a different type of wetland. Typically it would be converted into a series of ponds; shallow water ponds are considered to be a kind of wetland," he said.

Placer miner and president of the Klondike Placers Miners Association Mike McDougall said he's not a scientist, but he has walked a lot of ground in the territory and he's skeptical that peat bogs are disappearing.

"To my eyes it looks very similar to large parts of the Yukon that I've walked over before," said McDougall.

He acknowledges peat bogs cannot be re-established, but said the shallow ponds that replace them are good for the environment.

Miner says wildlife thrives on former claims

"They had reclaimed themselves naturally, very effectively, to a shallow wetland which was incredibly supportive, all types of wildlife you might find around a wetland complex including swans and ducks and geese, beavers, muskrats, all that sort of thing, right up through into the larger ungulates, the moose," said McDougall.

Jones counters that the peat bogs are also worth saving because they soak up carbon dioxide and are important in limiting climate change.

McDougall, however, says the mining activity is making little difference and the government is acting to provide the information sought by the water board. 

"The government is moving to inventory the wetlands, and to look at the larger picture of the wetlands as part of the whole Yukon wide ecosystem. Right now there's a very fine focus on a very small part of the Indian River, but the wetlands complex in Yukon is vast," he said.

Court cases piling up

There are a number of cases before courts now related to the environment in Yukon.

A dispute between First Nations and environmentalists on one side and the territorial government on the other over the proposed Peel Watershed Land Use Plan is set to be heard by the Supreme Court of Canada in February 2017.

Both the Ross River Dena Council and the Tr'ondëk Hwëch'in First Nation have filed separate lawsuits accusing the government of not properly consulting them on mining development in their traditional territories.

Petroleum exploration company Northern Cross is suing the Yukon Environmental and Socio-economic Assessment Board over what it says is unnecessary delays in processing its application to do exploratory drilling in northern Yukon.

A lawsuit by several First Nations has been put on hold after the federal Liberal government promised to repeal contentious legislation passed by the former Conservative government. The First Nations and others said it weakened Yukon land claim agreements and environmental protection.