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Supreme Court of Yukon Dismisses Liard First Nation Application to Quash Selwyn Project Decision Document
Posted in Indigenous Law

In Liard First Nation v. Yukon Government and Selwyn Chihong Mining Ltd., 2011 YKSC 55, the Yukon Supreme Court dismissed a challenge to the Yukon Director of Mineral Resources’ (“Decision Body”) decision to allow the Selwyn Resources Underground Exploration Program (“Project”) to proceed by confirming an environmental assessment which concluded that the Project was not likely to cause significant adverse environmental effects.

As background, the Project proposal was first submitted to the appropriate environmental assessment office (“Designated Office”) pursuant to the Yukon Environmental and Socio-economic Assessment Act (“YESAA”) in 2009. The Designated Office notified the proponent, the Decision Body and Liard First Nation (“LFN”), each of which filed extensive comments on the perceived environmental and social impacts of the Project. LFN, who has not completed a final land claims agreement, was advised that the Project might have environmental or socio-economic effects in the territory over which it claims aboriginal rights and title.

On June 16, 2010, the Designated Office recommended that the Project proceed (“Evaluation Report”). The Evaluation Report recommended 52 terms and conditions that would mitigate the Project’s significant adverse environmental effects to a level where they were no longer considered significant. On July 23, 2010, the Decision Body essentially accepted the Evaluation Report’s recommendation (the “Decision”), with some changes arising out of its consultation with LFN.

LFN challenged the Decision, contending that the Designated Office lacked sufficient background data to undertake an environmental assessment of the Project, and that the Decision failed to address the incompleteness of the Evaluation Report and deferred the assessment of significant environmental effects until after the Project is underway.

In its  decision, the Court confirmed that an environmental assessment process is not a regulatory process, but rather a planning one to ensure that environmental concerns are taken into consideration before projects are undertaken. As such, contrary to LFN’s assertion that the Designated Office failed to resolve uncertainties, the Court held that the Evaluation Report does not need to resolve all uncertainty, and found that the Evaluation Report reasonably assessed the environmental impacts of the Project. Similarly the Court found that the Decision Body fulfilled its obligation to give “full and fair consideration to scientific information, traditional knowledge and other information that is provided with the recommendation”, and found the Decision to be reasonable.

Concerning the duty to consult, the court held that LFN was entitled to a full and fair consideration of its views, to a level “significantly deeper” than the minimum, and accommodation where possible. In this case, the Court found the consultation to be full and fair as LFN was duly notified about the Project, given a meaningful opportunity to participate in the assessment, and several government employees knowledgeable about both the evaluation process and the scientific information met with LFN members to consider their view. LFN was reasonably accommodated through the changes made to the Decision after the July 22 meeting.

While the Court dismissed the challenge to the Decision, the proponent must still undergo further permitting, including a regulatory licensing process before the Yukon Water Board before the Project can proceed.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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