YESAB defends recommendation against exploration project in Peel watershed after gov't launches legal action

The Yukon Environmental and Socio-Economic Assessment Board (YESAB) is defending itself against a legal action from the territorial government over the board's recommendation against a proposed exploration project in the Peel watershed. 

In a 23-page reply filed to the Yukon Supreme Court last month, YESAB argues its Dawson City designated office carried out a fair and reasonable assessment of Silver47 Exploration Corp.'s Michelle Creek project.

Silver47 had proposed to do five years of exploration work at its Michelle Creek property near the northern tip of Tombstone Territorial Park. It was the first proposed project in the Peel watershed to go through YESAB since the Yukon and First Nation governments finalized the regional land use plan in 2019.

The YESAB office last year recommended against allowing the project to proceed, saying that it was likely to have severe adverse impacts on wildlife and First Nation wellness that couldn't be mitigated. 

The Yukon government filed a legal petition seeking a judicial review of the recommendation in May, alleging the Dawson office didn't have enough information to have completed a fair and thorough assessment. It's asking for a judge to quash the YESAB recommendation on the grounds that it's "unreasonable" and to send the project proposal back to the Dawson office for reconsideration. 

YESAB, in its written reply to the petition, says it's opposed to the court granting the government's requests. It accuses the Yukon government of taking portions of its recommendation report out of context, incorrectly describing other parts, and wrongly claiming the Dawson office had obligations that aren't actually set out in any legislation or other documents. 

Office not required to wait for missing data

Among the things the YESAB's reply takes issue with is the government's framing of how the Dawson office treated the lack of baseline data in Silver47's proposal and, as a result, its non-conformity with the Peel plan.

In its petition, the government argues the office had the authority to order Silver47 to collect the data and put the assessment on hold until the company provided it. The reply, however, argues the Dawson office wasn't required to do that.

"Inconsistent with the wording of the [Yukon Environmental and Socio-economic Assessment] Act, the petition seeks to turn the statutory discretion … into a mandatory obligation," the reply says.

"Procedural fairness did not require the [designated office] to… suspend its assessment until the proponent provided the information requested."

The Dawson office made "multiple information requests" to Silver47, the reply notes, and flagged that project proposals in the Peel must meet higher standards than elsewhere, including the provision of baseline data. 

Silver47 was also "on notice" that the office was "considering arguments that the Project should not be allowed to proceed due, in part, to lack of adequate baseline data," the reply says.

However, Silver47 said it believed its proposal wasn't subject to a baseline data requirement and confirmed on Sept. 12, 2022, that it would not be providing or collecting any additional information. 

"YESAB assessors have no authority to require a proponent to adjust their proposal if their proposal does not conform with the [Peel] Plan," the reply says.

The reply also argues that the government wrongly claimed the office said baseline data was necessary to fully evaluate the project.

"The absence of baseline data was not the sole basis for the outcome of this assessment," the reply says, arguing that the Dawson office "expressly concluded" the information it did have was enough to determine the project was likely to have significant adverse impacts.

Instead, the lack of baseline data "limited" the office's ability to help develop "defensible mitigations" to those potential impacts, the reply says.    

While the lack of data also meant the proposal didn't conform with the Peel plan, the reply says that wouldn't have automatically resulted in a recommendation against the project either. It again points to the likely significant adverse impacts on wildlife and First Nation wellness as the key reasons for the recommendation against Silver47's proposal. 

YESAB is asking that no orders for legal costs be awarded in the case, regardless of the outcome.

A hearing date has not yet been set for the petition.