Whitehorse Daily Star

Company denied a review of YESAB decision

The Federal Court has dismissed Northern Cross’s application for a judicial review of the Yukon Environment and Socio-economic Assessment Board’s (YESAB) 2016 decision to have its executive committee review a multi-well exploration proposal.

By Emily Blake on June 27, 2017

The Federal Court has dismissed Northern Cross’s application for a judicial review of the Yukon Environment and Socio-economic Assessment Board’s (YESAB) 2016 decision to have its executive committee review a multi-well exploration proposal.

Justice Keith Boswell ruled Monday that Northern Cross Ltd.’s application was premature, as YESAB’s administrative assessment process has yet to be completed. He found that there were no exceptional circumstances to justify court intervention.

“Generally speaking, courts are reluctant to review the merits of an administrative decision until it has been finalized,” he wrote.

In April, Northern Cross Ltd. asked to be given the opportunity to make further submissions and that the proposal be sent back to YESAB’s Dawson City office for decision.

It argued that YESAB breached procedural fairness by:

• scoping the project at 700 kilometres square;

• failing to request supplementary information;

• not providing the company with an opportunity to respond to late submissions; and

• failing to provide adequate time to respond to public comments.

Northern Cross said that the 19-month-long process resulting in approximately 270 documents should be sufficient for a judicial review.

But the Attorney General of Canada argued that a judicial review at this time would undermine the assessment process.

It noted that the executive committee could recommend approval of the project, making a judicial review unnecessary.

Justice Boswell agreed. He noted that Northern Cross has the opportunity to submit additional materials and information to the executive committee.

He added that some or all of Northern Cross’s concerns may be corrected during the committee’s assessment.

In July 2014, Northern Cross submitted its project proposal to drill up to 20 exploratory wells in a 320 kilometres square area in the Eagle Plains basin.

Previously, the company was allowed to do a three-dimensional seismic survey over 450 kilometres square in a 700 kilometres square area.

In August, the Dawson City office made a request for more information on the proposal, including clarification on the scope of the project and details on monitoring the Porcupine caribou herd. The office made two further requests for information.

Northern Cross then submitted a revised project proposal, which the office deemed sufficient in October.

The office held a public consultation period where it received 35 submissions, including submissions from the Porcupine Caribou Management Board (PCMB) about the potential impact the project could have on the caribou herd.

In December, Northern Cross was asked to respond to 35 additional questions. Those included requests to submit an Access Management Plan and a Wildlife Monitoring Program, and contact impacted First Nations to determine their current and traditional use of the project area.

The company provided its response in August 2015, which the office found deficient. Northern Cross provided supplementary information in October.

In early November, the designated office held another public comment period with a Dec. 9 deadline for submissions. It received 47 submissions and held a public meeting in Dawson City on Dec. 8.

The office informed Northern Cross that it had to respond to the submissions by Dec. 10, giving them only one day to respond to the 37 submissions that had been posted on the board’s online registry.

The PCMB was allowed to make a late submission on Dec. 15, which Northern Cross did not respond to.

In January, the office extended its evaluation deadline and a new team was assembled to assess the proposed project.

A central value in its assessment was the way of life of the First Nations and the Inuvialuit in relation to the Porcupine caribou herd.

The board noted that the Na-cho Nyäk Dun, Inuvialuit, Teltit Gwich’in Council, Tr’ondëk Hwëch’in, and the Vuntut Gwitchin First Nation all value access to the herd for their community health and vitality, cultural identity and continuity, food security and traditional economy.

YESAB released its evaluation report in February 2016. It found it could not determine the impact the project would have on access to and use of the caribou herd. It listed six areas where additional information would have been helpful in making a decision.

The board also made the rare decision to refer the proposal to the executive committee for screening.

In March 2016, Northern Cross filed its application for judicial review of YESAB’s decision.

The company hired a consulting firm to prepare a response to the PCMB submissions and say they would now propose a caribou stakeholder advisory committee to address the issues raised.

A screening by the executive committee is similar to an evaluation by a designated office, but the committee has more time to make a decision and more procedural tools at its disposal.

Ultimately, following further review the committee will make a recommendation to the decision bodies on the project or require additional review.

In April, Northern Cross also filed a $2.2-billion lawsuit against the Yukon government over a fracking moratorium that they claim has impaired their exploration rights in Eagle Plains.

Comments (3)

Up 8 Down 9

D. Hardly on Jun 28, 2017 at 4:48 pm

To Frustrated Yukoner, I suggest you realize a couple of things - the First Nations are no longer Indian Bands under the thumb of Ottawa and those First Nations have repeatedly demonstrated they can identify their own interests and take care of them.

By the way, wake up and realize the oil & gas industry is on it's last "legs". Besides, Northern Cross as a company is too.

Up 7 Down 11

woodcutter on Jun 28, 2017 at 4:39 pm

Oil and gas by products?

Do you mean, garbage and toxic run off from the fracking, exploration and exploitation of the oil? Or the increased access that will result in weekend hunters blasting away at the caribou? Or the garbage and mess that this industry always leaves behind? Or the negative social impacts that is associated with this industry?

There is orphaned gas wells in the Yukon that the Yukon taxpayer is picking up the cost for. Is this the by-product that is being referred to?
I see your point, I wonder why they don't want it, seems to good to be true.

Up 13 Down 13

Frustrated yukoner on Jun 27, 2017 at 5:41 pm

There goes any potential oil and gas industry up here and all from every native band that stands to gain the most and is the biggest users of oil and gas byproducts.

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