Yukon government takes assessment board to court after it recommends against mining project in Peel watershed

The Yukon government is taking the territory's environmental and socio-economic assessment board to court after it recommended against a proposed mining exploration project in the Peel watershed.

In a petition filed to the Yukon Supreme Court Monday, the government alleges the Dawson City-area office of the board, commonly referred to as YESAB, didn't have enough information for a fair, thorough assessment of the Michelle Creek project. 

The project is spearheaded by the Vancouver-based Silver47 Exploration Corp., which is proposing to do five years of exploration work on its Michelle property. The property is located about 120 km northeast of Dawson City near the northern tip of Tombstone Territorial Park and on the traditional territories of the Tr'ondëk Hwëch'in and the First Nation of Na-Cho Nyäk Dun.

It was the first project in the Peel watershed to go through a YESAB assessment since the Yukon and First Nation governments finalized the regional land use plan in 2019.

The YESAB Dawson City Designated Office recommended against the project last year, saying in an evaluation report that it was "likely to have significant adverse … effects in or outside Yukon that cannot be mitigated," particularly on wildlife and First Nation wellness. 

The government is asking for a judicial review of the assessment and for the court to quash the recommendation on the grounds that it's "unreasonable." It also wants the case remitted to the Dawson office for reconsideration and a declaration the office "failed to observe a principle of natural justice or procedural fairness." 

It's the first time the government has sought a judicial review of a YESAB assessment.

Under the YESAB process, designated offices assess projects and offer recommendations on whether they should proceed. Decision bodies, typically federal and territorial government representatives, may choose to accept, reject or vary those recommendations. The Yukon government doesn't have an option outside of court to get an office to re-do an assessment. 

YESAB has not yet filed a reply to the petition and the matter has yet to go before a judge. 

The Yukon government declined to provide anyone for an interview, citing the ongoing court case. 

YESAB's Dawson regional operations manager, Don McPhee, also declined to speak to CBC News for the same reason. 

Representatives for Silver47, Tr'ondëk Hwëch'in and the First Nation of Na-Cho Nyäk Dun, which are not directly involved in the legal matter, were not immediately available for comment.

Not enough baseline data

In an email, Yukon Department of Energy, Mines and Resources spokesperson John Thompson wrote that the government didn't have any discussions with Silver47 before launching the legal action, and also doesn't "have a view on what the recommendation from the designated office on this project should be." 

"Our concern is ensuring that the project is properly assessed before a decision document is issued," Thompson wrote. 

"As a decision body, the Yukon government depends on assessors providing a complete picture of a proposed project's potential impacts and presenting this information in a clearly reasoned way," he also wrote.

"From our perspective, the concerns we've identified impede our ability to make an informed decision on the project."

The petition specifically points to a lack of baseline data provided by Silver47 during the assessment. 

In its evaluation report, the Dawson office wrote that the company, despite requests from YESAB, didn't provide adequate information on existing sheep and caribou populations nor First Nations heritage resources.

Baseline data is meant to help evaluate a project's impacts on the environment. The Peel plan also contains a policy recommendation to "ensure adequate wildlife and habitat baseline data collection is completed prior to any development activities occurring" in the Peel. 

The Dawson office concluded that the lack of baseline data meant Silver47's proposal did not comply with the Peel plan, and also that adequate mitigation measures to protect sheep and caribou couldn't be put in place. 

The Yukon government petition claims that's unreasonable.

"Despite identifying that adequate baseline data was required to evaluate the Project and it had not been provided, the Designated Office completed the evaluation without it," the document says, arguing the Dawson office had the authority to require Silver47 to provide the data and to suspend the assessment until it  was provided.

The government also claims the office didn't give the company notice that a higher standard of baseline data was required to comply with the Peel plan and due to the project's location within the Peel — the project covers two "wilderness areas," which have interim protection from development, and one integrated management area, which allows for moderate development. 

(Documents available on the YESAB registry show the Dawson office mentioned the Peel plan in several communications with Silver47, including a July 18, 2022 information request stating the Yukon and First Nations governments had provided comments indicating the company's previous responses were "insufficient in aligning with the goals and general management directions of the Peel Watershed Regional Land Use Plan.")

The petition also alleges the Dawson office "conflated" Sliver47's failure to provide adequate baseline data and therefore non-conformity with the Peel plan "with adverse project effects on First Nation wellness." 

'I am still scratching my head'

Representatives of two Yukon conservation groups who heavily advocated for the Peel plan said they would be following the case closely.

"My initial reaction was, I was startled, and then I scratched my head," Sebastian Jones, the Yukon Conservation Society's fish, wildlife and habitat analyst, said in an interview. 

"And tell you the truth, I am still scratching my head."

Jones said he thought that it was a "fairly extreme measure" for the government to go to court on the matter, especially given that the YESAB Dawson office had given a recommendation the government has the power to reject or modify. 

"Obviously, the Yukon government's very uncomfortable with the recommendation that YESAB made, presumably because it wants to send more positive signals to the mining community that, you know, despite regional land use plans, there's still business as usual for mining," he said. 

Maegan Elliott, the conservation coordinator for the Canadian Parks and Wilderness Society's Yukon chapter, told CBC News she was "disappointed" the government chose to go to court and that she believed the onus for providing adequate data should fall on project proponents. 

"I don't think it's really YESAB's job to be helping proponents along with this … If the proponent had been prepared from the start that wouldn't have been an issue," she said. 

"I'm hopeful that this isn't a pattern that starts developing for projects going through in the Peel," she added.