Attorney General of Canada, YESAB argue Yukon gov't court case on exploration project should be tossed

A legal battle brought by the Yukon government against the territory's assessment board over a proposed exploration project in the Peel watershed concluded Friday with more requests for the judge to toss the case.

Lawyers representing the Attorney General of Canada and the Yukon Environmental and Socio-economic Assessment Board (YESAB) separately argued on the third and final day of the hearing that the territorial government's petition against the board should be dismissed, though for different reasons. 

"We take no position on this judicial review other than, throw the whole thing out," YESAB lawyer Kate Phipps said.

The Yukon government filed its petition last year after the board's Dawson-area designated office recommended against an exploration project in the southern edge of the Peel watershed. 

Exploration company Silver47 proposed to do five years of work in the Michelle Creek area, near the northern tip of Tombstone Territorial Park. The office concluded the project would have serious impacts on wildlife and First Nations wellness that couldn't be mitigated, noting the company also didn't provide baseline data for the area to help with the assessment and as required under the Peel Watershed Regional Land Use Plan prior to development. 

The government argued earlier in the week that the office's recommendation was unreasonable because it couldn't have properly assessed the project without the missing data. It also alleged the office's evaluation report contained errors and inconsistencies and that the office had misread the Peel plan, propositions supported by Silver47.

Attorney General of Canada lawyer Marlaine Anderson-Lindsay, however, argued that while the Yukon went on a "line-by-line treasure hunt for error," the recommendation did not contain any major issues. Instead, she argued, the office took a broad approach and considered multiple factors to reasonably arrive at its recommendation. 

"There was no error," she said. 

Anderson-Lindsay also disputed that YESAB, governed by the federal Yukon Environmental and Socio-economic Assessment Act, could be restricted by territorial legislation, referring to arguments made by Silver47 on the application of the Yukon's Quartz Mining Act. 

The company argued that the office wrongly concluded the Peel plan's baseline data requirement was applicable to its project because it was doing "exploration," not "development," as defined in the Quartz Mining Act.

Territorial legislation, Anderson-Lindsay said, could not be used to restrict a YESAB assessment, with only the board itself having the power to determine assessment scope. 

Recommendation has 'no actual impact,' YESAB argues

While Anderson-Lindsay argued that quashing the recommendation wasn't appropriate, she also cautioned against the other remedy being sought by the Yukon — getting the office to do the assessment again. 

The federal act, she noted, does not allow for decision bodies to refer recommendations back to designated offices for reconsideration, and allowing that to happen had the potential to undermine Parliament's intentions for the legislation. 

Anderson-Lindsay disagreed with the Yukon's suggestion that the office could have sent the proposal to the executive committee or paused its assessment in the absence of baseline data, arguing neither were appropriate in the situation. 

Phipps, meanwhile, said YESAB was participating in the legal proceedings in a "limited capacity" because of its need to remain impartial, given the likelihood that all the parties would be back before the board in the future. 

While YESAB took "no position" on the reasonableness arguments, she reiterated that the federal act didn't have an option to refer recommendations back to offices. 

That, she said, was because Parliament intended for offices to be able to do assessments "expeditiously," with more complex assessments intended to go to executive committee or panel screens. 

Phipps also noted the recommendation contained analysis of the project's impacts beyond just the lack of baseline data, and said Silver47 never raised the relevance of the Quartz Mining Act during the assessment.

Echoing an argument made earlier by the First Nation of Na-Cho Nyäk Dun, Phipps said the Yukon didn't have grounds to ask for a judicial review because the office's recommendation was non-binding and had "no actual impact." 

Yukon government lawyer I.H. Fraser, in reply, reiterated his argument that the office didn't have enough information in front of it to conclude the project's impacts couldn't be mitigated — a mandatory requirement to recommend against a proposal. In the circumstances, he said, the office had three options available — pause its assessment, refer it to an executive committee, or recommend it proceed with a term or condition that would force Silver47 to provide baseline data.

Silver47 lawyer Josh Janzti, separately, replied that the company indirectly raised the Quartz Mining Act during the assessment by disputing it was required to provide baseline data since it was doing exploration, not development. 

Yukon Supreme Court Chief Justice Suzanne Duncan reserved her decision, but said she hoped to have it ready in about three months' time.