Nicolai Goeppel and H. Coyne & Sons were each fined $1,200 Wednesday on charges related to building an illegal 17-kilometre road through wilderness near Carmacks.
Territorial Court Judge Peter Chisholm this said type of activity must be condemned.
Not only did the unauthorized road cross Goeppel’s placer mining lease, but it went well beyond the boundaries, the judge noted in his decision.
Goeppel, 28, and H. Coyne & Sons each pleaded guilty last month to the same three charges:
• using a bulldozer to build the road without authorization;
• levelling, clearing and cutting trees beyond the 1.5 metres allowed under Class 1 exploration work; and
• using a machine heavier than five tonnes to do the work.
Sentencing took place yesterday.
The maximum fine allowed on each count is $500, six months in jail or both.
Chisholm imposed fines of $400 on each count, plus a $180 victim surcharge.
Defence lawyer Richard Fowler of Vancouver told the judge Goeppel grew up working on his family’s placer mine near Carmacks.
His client went on to study geology at university. Goeppel now runs his own placer exploration business and continues to be a hard-working Yukoner who provides employment opportunities and wealth for the territory’s economy, Fowler said.
He emphasized this was Goeppel’s first offence.
Defence lawyer Meagan Hannam told the judge H. Coyne & Sons has been a solid contributor the territory for 40 years.
But for one previous error in judgment that led to a charge under the land use regulations, she said, the company has a clean record through four decades of continuous work.
Both lawyers told the judge the maximum fine of $500 was reserved for the worst offences, and the worst offenders.
Their clients, they argued, are productive members of the exploration and mining industry, not to be lumped into a classification as the worst offenders.
Fowler told the judge in his sentencing submissions the rules and regulations governing the industry are complicated.
Construction of the road, he suggested, was a byproduct of interpreting those complicated rules.
Territorial Crown prosecutor Megan Seiling told Chisholm the rules and regulations are complicated because it’s a complicated industry.
For that reason, those in the industry need to know and understand them, she said.
Seiling said the type of activity allowed under the different classes of exploration is clearly set out.
The territorial prosecutor told the judge when the mining recorder testified last month, she explained when parties apply for a placer mining lease, they’re told what is allowed, and what’s not.
The construction of a 17-kilometre road without authorization was not allowed, and is a very serious matter, she told the judge.
Seiling said both the Little Salmon-Carmacks First Nation and the Selkirk First Nation called her to express deep concerns about this type of unauthorized activity.
Construction of the road without authorization is in itself a serious breach of the regulations, she said.
Seiling told the judge of equal concern, however, is a new access road into an area previously inaccessible by vehicle. It will, she said, provide new access to hunters, for instance.
Since the road was built in the summer of 2016, 250 mineral claims have been staked just the beyond the end of the road – including claims staked by Goeppel and H. Coyne and Sons, Seiling told the judge.
She said the enviromental damage caused by clearing a three- to five-metre-wide road over 17 kilometres was substantial.
Trees were pushed over, and overburden and low-lying vegetation were bulldozed, Seiling added.
Up to 500 metres of permafrost was exposed.
As well, the banks along a creek were distabilized at four locations where the road crosses, causing additional sediment to wash into salmon-bearing waters, she said.
Seiling told the judge that by building the road without authorization, Goepple and H. Coyne & Sons have usurped the entire environmental review process.
Constructing roads is not allowed under Class 1 exploration for a reason, she suggested.
She said any activity above Class 1 exploration must go through a full review by the Yukon Environmental and Socio-economic Assessment Board – but that didn’t happen.
Evidence put before the court during the hearing last month indicated Goeppel had applied for a placer mining lease north of Carmacks on the east side of the Klondike Highway.
The court heard how the mining recorder’s office routinely allows applicants to conduct the lowest level of exploration work before the lease is approved, given the shortness of the season and the volume of applications being handled by staff.
The mining recorder also testified applicants are told any work they do on the lease while waiting for formal approval is at the risk of their own expense, should the application be denied.
It’s also emphasized all work conducted must be in accordance with Class 1 exploration activity, the lowest form of exploration that does not allow for roads nor trails wider than 1.5 metres, the mining recorder testified.
At the onset of the trial in early November, both defence lawyers challenged the maximum fine for three offences under the land use regulations.
In reading the fine print of the legisation, it was not the $5,000 the Yukon government has been imposing for years and years, they argued.
Rather, the defence lawyers insisted, it was $500.
After adjourning for an afternoon to consider the submissions, Judge Chisholm agreed.
Geoppel and H. Coyne & Sons subsequently changed their pleas to guilty on the three land use infractions.
But they maintained not guilty pleas to one count each of harvesting forest products without authorization, which carried a maximum penalty of $150,000 or one year in jail, or both.
Goeppel’s defence lawyer argued they never harvested anything, they pushed over trees and underbrush, but they never took anything.
Harvesting, Fowler argued, is like taking a tomato from the garden to use later for making tomato sauce.
Goeppel and H. Coyne & Sons took nothing, they harvested nothing, he said.
Both defence lawyers emphasized in their arguments the law in Canada says words in legislation must be read in their simplest and natural form.
Their clients did not harvest anything, they insisted.
Judge Chisholm agreed and found both Geoppel and H. Coyne & Sons not guilty of harvesting forest products without authorization.