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

Jackie Hong · CBC News

· Posted: Mar 05, 2025 1:29 PM EST | Last Updated: March 5

The Yukon Supreme Court has tossed the territorial government's lawsuit against the Yukon Environmental and Socio-economic Assessment Board implicit the board's recommendation against a projected exploration task successful the Peel watershed.

In a newly-published decision, Chief Justice Suzanne Duncan dismissed the government's petition against the board, commonly referred to arsenic YESAB, connected procedural grounds, penning that the proposal astatine the centre of the lawsuit was "not amenable to judicial review" due to the fact that it wasn't binding. 

"[YESAB's] study and proposal does not impact the ineligible rights of immoderate person, enforce ineligible obligations connected immoderate person, oregon origin prejudicial effects connected immoderate person, due to the fact that nary determination has been made," Duncan's ruling reads successful part.

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

The authorities filed a ineligible petition successful 2023 aft YESAB's Dawson-area designated bureau recommended against a connection by exploration institution Silver47 to bash 5 years of enactment astir Michelle Creek. The country is successful the confederate reaches of the Peel watershed adjacent the bluish extremity of Tombstone Territorial Park and connected the accepted territories of the Tr'ondëk Hwëch'in and First Nation of Na-Cho Nyäk Dun (FNNND).

The YESAB office, aft assessing Silver47's proposal, determined that the task was apt to person terrible adverse impacts connected wildlife and First Nation wellness that couldn't beryllium mitigated, and that it wasn't successful compliance with the Peel Watershed Regional Land Use Plan.

YESAB recommendations are not binding, with determination bodies — typically branches of the Yukon and Canadian governments — yet determining whether a task tin determination into the permitting phase.

The Yukon government applied for a judicial reappraisal of the Michelle Creek proposal claiming that it was unreasonable, profoundly flawed and the effect of an unfair appraisal and truthful impacted its ain quality to marque a decision.

Duncan rejected that.

"The Yukon government's statement that a materially flawed study compromises oregon taints their quality to marque a lawful decision; and volition origin duplicative efforts contrary to the statute is not a capable crushed to question tribunal involution astatine this time," she wrote, besides noting that the Yukon Environmental and Socio-economic Assessment Act, nether which the committee was established, "does not contemplate tribunal involution astatine this stage."

Duncan wrote that a judicial reappraisal would lone beryllium due aft the determination bodies find if a task proceeds.

YESAB seat Stephen Rose said successful a written connection Wednesday that the committee appreciated the determination and "the wide judicial absorption connected the availability of judicial reappraisal for a Designated Office recommendation." 

"We stay committed to fulfilling our intent of conducting neutral assessments successful the Yukon and contributing to protecting the situation and the social, economic, and taste well-being of First Nations and residents," helium said. 

First Nation 'delighted' by the outcome, main says

Duncan, successful her ruling, besides dismissed requests to measure the merits of the recommendation and the Yukon government's petition for a tribunal bid to quash the recommendation and person the YESAB office re-do its task assessment.

"To bash truthful would interruption the rule of judicial respect for administrative decision-makers and an administrative process containing assorted steps acceptable retired by Parliament," she wrote. She besides said that the Yukon authorities had different avenues to code its concerns, including done consultation.

The lawsuit marked the archetypal clip the Yukon authorities had ever taken ineligible enactment against YESAB. Duncan heard 3 days of arguments past November, with First Nations, the lawyer wide of Canada and YESAB asking for the petition to beryllium dismissed portion the Yukon authorities and Silver47 pushed for a ruling to person the appraisal re-done.

Silver47's task was the archetypal 1 successful the Peel watershed portion to acquisition a YESAB appraisal since the signing of the determination onshore usage program successful 2019.

Duncan's determination was applauded by FNNND Chief Dawna Hope, who was not disposable for an interrogation with CBC News but said successful a written connection that her First Nation was "delighted" by the outcome. 

"We are pleased to spot Chief Justice Duncan rightfully admit that Yukon's lawsuit was inappropriate and should ne'er person been brought," she said. "We anticipation Yukon volition reconsider its attack to the Michelle Creek task and admit the task should not proceed—as YESAB determined."

Hope besides said that FNNND was "deeply disappointed" erstwhile it learned that the Yukon authorities had filed the case, which it "considered a nonstop onslaught connected the Peel onshore usage program and our decades of enactment unneurotic to beforehand our halfway Treaty committedness of onshore usage readying and co-management of our lands and resources."