Yukon court hears dispute over proposed exploration project in Peel watershed

A proposed mining exploration project in the Yukon's Peel watershed is at the centre of a court battle this week, with the Yukon government arguing the territory's assessment board shouldn't have recommended against it. 

But while the government and project proponent want the recommendation tossed and the assessment redone, the board, two First Nations and the Attorney General of Canada are asking for the case to be dismissed instead. 

The Yukon government filed a legal petition against the Yukon Environmental and Socio-economic Assessment Board (YESAB) last year after the board's Dawson-area designated office recommended that a project by company Silver47 not be allowed to proceed. 

Silver47 proposed to do five years of exploration work around Michelle Creek, in the southern reaches of the Peel watershed near the northern tip of Tombstone Territorial Park and on the traditional territories of the Tr'ondëk Hwëch'in and First Nation of Na-Cho Nyäk Dun (FNNND). 

The office determined the project was likely to have severe adverse impacts on wildlife and First Nation wellness that couldn't be mitigated, and also said the proposal wasn't in compliance with the Peel Watershed Regional Land Use Plan as Silver47 failed to provide baseline data on things like the area's wildlife, heritage resources and water quality.

Yukon government lawyer I.H. Fraser, in opening submissions Wednesday, admitted that the situation felt "a little unfamiliar," with the government usually on the receiving end of legal action over approved mining projects. 

However, while the Yukon has the ability to reject, accept or modify YESAB recommendations, Fraser said the recommendation for Silver47's project was "unreasonable" and "so flawed" that the Yukon government needed to see it corrected before it could determine next steps

Under the Yukon Environmental and Socio-economic Assessment Act, Fraser argued, YESAB offices can require project proponents to provide additional info — in this case, baseline data. 

Silver47 never provided that data. However, Fraser said, the legislation then left the office with only two options — suspend its assessment until it got the data, or refer the proposal to an executive committee screening.  

Without the missing data, Fraser argued, the office was not in a position to determine if the project's adverse effects could be mitigated or not. 

'The board's reading of the plan is just dead wrong'

Fraser also argued that the office didn't have the authority to determine if the proposal conformed with the Peel plan, and that it was too early in the process to make that determination anyway.

The plan recommends that baseline data be collected "prior to any development activities," Fraser noted, and argued that there would be "plenty of time" before any development occurred. It was impossible, he said, to make a determination at the early assessment stage of a project that it would never meet that requirement. 

Fraser took aim at various parts of the recommendation report, claiming that it contained a "concatenation" of "probability and possibility" and didn't draw a clear correlation between First Nations wellness and wildlife. 

Elsewhere, he continued, there was "confusion" about whether the office believed the project's potential effects couldn't be mitigated or if it didn't know whether mitigation was possible due to the lack of baseline data. Fraser also said there was no explanation for why the office concluded that recommending the project proceed with terms and conditions would underline the land use planning process, or why the baseline data was needed at that phase of the project. 

Silver47 lawyer Josh Jantzi, in his submissions, said the company agreed with the Yukon government. He also argued that the Peel plan's baseline data requirement was not applicable to Silver47 because the company was proposing an exploration project — not "development."

"The board's reading of the plan is just dead wrong," he said.

While the office had requested baseline data from Silver47, Jantzi argued that the office never informed the company that it was "crucial" to its proposal, raising an issue of fairness, and also never explained why it needed the data at such an early stage. 

Baseline data collection, Jantzi also argued, can take years, and with exploration work often covering dozens of sites, making it a requirement at early stages would render most projects unfeasible. 

'We will defend the Peel plan as many times as we need to'

Dozens of people rallied outside the Whitehorse courthouse as the hearing took place inside. 

Steve Buyck, who contributed to the Peel plan and is a FNNND citizen, encouraged people to keep showing up to protect the watershed.

"I see [the Yukon government] stepping over their bounds," he said.

"We need to ensure that our grandchildren, your grandchildren, our future generations, could see that area pristine, not with a whole bunch of mining development."

Joti Overduin, the outreach manager for the Canadian Parks and Wilderness Society's Yukon chapter, was also at the rally and said she thought YESAB did "a very, very thorough job in terms of being able to explain why they took the approach that they did" with Silver47's proposal. 

"And the fact that the federal government, in addition to Tr'ondëk Hwëch'in and Na-Cho Nyäk Dun, is also backing up YESAB, to me, is sending a very strong message about this case," she said. 

Meanwhile, the chiefs of the First Nations involved in the case said the Yukon government's petition was an attack on their treaty rights.

"Yukon's lawsuit makes a mockery of the Peel plan," FNNND Dawna Hope said. "[We] had to defend the Peel plan before the Supreme Court of Canada in 2017, and we won. We will defend the Peel plan as many times as we need to."

Tr'ondëk Hwëch'in Hähkè (Chief)Darren Taylor described the government's court challenge as a betrayal of First Nations.

"We negotiated in good faith for a plan that balanced our rights with the need for economic development in the region, and we are disappointed to learn that our good faith was misplaced," he said. 

The hearing continues Thursday.