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 refused?
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 licensing process.
…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.