Court tosses Yukon gov't case against YESAB over recommendation on exploration project

The Yukon Supreme Court has tossed the territorial government's case against the Yukon Environmental and Socio-economic Assessment Board over the board's recommendation against a proposed exploration project in the Peel watershed.

In a newly-published decision, Chief Justice Suzanne Duncan dismissed the government's petition against the board, commonly referred to as YESAB, on procedural grounds, writing that the recommendation at the centre of the case was "not amenable to judicial review" because it wasn't binding. 

"[YESAB's] report and recommendation does not affect the legal rights of any person, impose legal obligations on any person, or cause prejudicial effects on any person, because no decision has been made," Duncan's ruling reads in part.

"The administrative process has not yet concluded: the [YESAB designated office's] recommendation is not a decision."

The government filed a legal petition in 2023 after YESAB's Dawson-area designated office recommended against a proposal by exploration company Silver47 to do five years of work around Michelle Creek. The area is 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 YESAB office, after assessing Silver47's proposal, determined that the project was likely to have severe adverse impacts on wildlife and First Nation wellness that couldn't be mitigated, and that it wasn't in compliance with the Peel Watershed Regional Land Use Plan.

YESAB recommendations are not binding, with decision bodies — typically branches of the Yukon and Canadian governments — ultimately determining whether a project can move into the permitting phase.

The Yukon government applied for a judicial review of the Michelle Creek recommendation claiming that it was unreasonable, deeply flawed and the result of an unfair assessment and therefore impacted its own ability to make a decision.

Duncan rejected that.

"The Yukon government's argument that a materially flawed report compromises or taints their ability to make a lawful decision; and will cause duplicative efforts contrary to the statute is not a sufficient reason to seek court intervention at this time," she wrote, also noting that the Yukon Environmental and Socio-economic Assessment Act, under which the board was established, "does not contemplate court intervention at this stage."

Duncan wrote that a judicial review would only be appropriate after the decision bodies determine if a project proceeds.

YESAB chair Stephen Rose said in a written statement Wednesday that the board appreciated the decision and "the clear judicial direction on the availability of judicial review for a Designated Office recommendation." 

"We remain committed to fulfilling our purpose of conducting neutral assessments in the Yukon and contributing to protecting the environment and the social, economic, and cultural well-being of First Nations and residents," he said. 

First Nation 'delighted' by the outcome, chief says

Duncan, in her ruling, also dismissed requests to evaluate the merits of the recommendation and the Yukon government's request for a court order to quash the recommendation and have the YESAB office re-do its project assessment.

"To do so would violate the principle of judicial respect for administrative decision-makers and an administrative process containing various steps set out by Parliament," she wrote. She also said that the Yukon government had other avenues to address its concerns, including through consultation.

The case marked the first time the Yukon government had ever taken legal action against YESAB. Duncan heard three days of arguments last November, with First Nations, the attorney general of Canada and YESAB asking for the petition to be dismissed while the Yukon government and Silver47 pushed for a ruling to have the assessment re-done.

Silver47's project was the first one in the Peel watershed region to undergo a YESAB assessment since the signing of the regional land use plan in 2019.

Duncan's decision was applauded by FNNND Chief Dawna Hope, who was not available for an interview with CBC News but said in a written statement that her First Nation was "delighted" by the outcome. 

"We are pleased to see Chief Justice Duncan rightfully recognize that Yukon's case was inappropriate and should never have been brought," she said. "We hope Yukon will reconsider its approach to the Michelle Creek project and recognize the project should not proceed—as YESAB determined."

Hope also said that FNNND was "deeply disappointed" when it learned that the Yukon government had filed the case, which it "considered a direct attack on the Peel land use plan and our decades of work together to advance our core Treaty promise of land use planning and co-management of our lands and resources."