One frequently troublesome area of environmental law is the
intersection between different types of approvals. Once an
overarching, project wide approval, such as an environmental
assessment, has been granted, may an individual approval be
Western Copper v. Yukon Water Board is
a rare example of a project being brought to a halt at the water
permit stage, even though it passed its environmental assessment.
Western Copper Corporation unsuccessfully appealed a decision of
the Yukon Water Board to deny its application for a water license
for a proposed copper heap leach-mining project. The project had
received a approval under the Yukon Environmental and
Socioeconomic Assessment Act, which implemented an umbrella
final agreement and 11 comprehensive land claim agreements between
Canada, Yukon, and First Nations. The proposed mine would represent
5 percent of Yukon's gross domestic product and the company had
invested in the project for many years. The project had passed its
environmental assessment, subject to 148 recommendations, all
approved by the Yukon government, and had received its Yukon mining
license. Nevertheless, the Water Board denied its application for a
water licence, as it was not satisfied that the waste from the mine
would be appropriately treated and disposed of.
Western Copper and the Yukon Chamber of Mines naturally argued
that this was a question about the overall design of the mine, a
question that had already been asked and answered when the mining
license was issued. The Yukon Territory Supreme Court, however,
agreed that the Water Board had jurisdiction to refuse to approve
the project based on its own evaluation of its threat to
Yukon water resources, regardless of the previous approval of the
environmental assessment. In other words, the Water Board had the
right to refuse to accept the scientific findings from the
environmental assessment process that the heap leach technology had
been adequately proven. "The Water Board has expressly
disagreed with the finding of the executive committee of Yesab that
certain aspects of the heap leach technology has been proven to be
viable. There is no obligation, statutory or otherwise, for the
Water Board to accept the scientific finding from the assessment
process. To come to such a conclusion ... would completely
eviscerate the licensing role of the Water Board. In my view, it
was never intended to that the assessment processes recommendations
of socioeconomic terms and conditions would trump the regulatory
...It is crucial to differentiate between the development
assessment process and the regulatory process. Development
assessment is conceptually the same as environment impact
assessment ... in short, environmental impact assessment is simply
descriptive of a process of decision making....
The YESAB executive committee conducts environmental assessments
or screening. It is not a regulatory body making the decision that
a mine can operate. Thus, when a decision document accepts the
recommendations of the executive committee, it is not a licensing
or permitting decision it has the same status as a regulatory
license ... the decision document is not a license or a permit for
the project to be undertaken but a document allowing the project to
proceed to the licensing application ..."
Western Copper Corporation v. Yukon Water Board, February 24,
2011, Yukon Territory Supreme Court.
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