The amount of money Selwyn Chihong Mining has spent and plans to spend on its Selwyn Project needs to be given some weight, a lawyer told Yukon Supreme Court Justice Ron Veale this week.

Charles Willms said the Yukon Environmental and Socio-economic Assessment Board (YESAB) is not just about protecting the environment.

It's also about providing responsible social and economic opportunities, just like the name says, Willms told Veale in this week's hearing into an application by the Liard First Nation to stop the project.

The lawyer said if for some reason – some obscure technical reason that doesn't exist in his mind – the judge sides with the First Nation, the court doesn't have to lock down the whole affair.

If Veale finds merit in the First Nation's arguments, there has to be some way to allow aspects of the project to proceed while addressing outstanding problems with the government's approval, Willms told Veale.

Other courts, he said, have ruled a judge has that type of flexibility when handling challenges to environmental assessments.

"I am not suggesting at all that jobs outweigh legal requirements,” he said. "I am suggesting if there was some technical requirement that was not met, there must be some less intrusive solution.”

Willms reminded Veale the matter is also still before the Yukon Water Board, which will be setting down its own regulatory guidelines for managing water use and discharge levels.

Evidence before Veale indicates Selwyn Chihong is embarking on a $65-million underground exploration project this year, over and above the millions it's already spent bringing in the necessary supplies and equipment for the work.

The Selwyn lead-zinc project is located in and around Howard's Pass on the Northwest Territory's border, some 160 kilometres northeast of Ross River.

The First Nation argued this week the environmental assessment on which the government based its project approval was seriously flawed, particularly in the area of addressing water management concerns. For that reason, the project approval should be quashed, the First Nation maintains.

Lawyers for the government, YESAB and Selwyn Chihong took turns over several hours Monday and Tuesday attacking the challenge and defending the environmental assessment and the subsequent project approval last July.

Veale reserved his decision at the end of submissions Tuesday, indicating he will make it as quickly as possible.

Drew Mildon, the First Nation ‘s lawyer, told Veale if he rules in favour of the First Nation but finds there are aspects of the project that can proceed, nobody's going to lose a lot of sleep.

But he also insisted money already spent by the company or about to be spent should not be given any weight in determining the outcome of the case.

Selwyn Chihong knew back in November, when the Liard First Nation filed its request for a judicial review, that the project approval was being challenged, he pointed out.

Mildon said it was the company's choice to mobilize its equipment and move forward as if all systems were green for go. It's still waiting for a decision from the water board on a licence it needs before it can do anything, he pointed out.

"The company is moving forward without any legal authority that the project may go forward.”

Mildon told Veale he should also dismiss the suggestion the government was under a tight 37-deadline from the time it received YESAB's recommendation for approval to issuing its final decision – that it did its best in the time allowed under the legislation.

Selwyn Chihong, he pointed out, submitted its original application last winter.

On the last day allowed to provide YESAB's Watson Lake office with all the necessary information, it cancelled the application with one hand and re-submitted it with the other, thus starting the clock all over again for the company, Mildon reminded Veale.

He said the Yukon government knew the Liard First Nation had outstanding concerns right up until the last day before it issued approval on July 23, based on YESAB's recommendation, but nobody re-started the clock for the First Nation.

Time lines contained in the YESAB legislation are a concern in the current five-year review of the legislation, Mildon told the judge.

He said the companies like them but the First Nations often feel squeezed trying to understand sophisticated proposals to provide meaningful feedback in the time allotted.

Another Selwyn Chihong lawyer, Kevin O'Callaghan, told Veale it is relevant that he consider the potential ramifications of his decision.

He said if the Selwyn project is delayed by even a year, the company would lose millions of dollars.

It's already spent $3.4 million bringing in the necessary gear, and it's renting the equipment out at $400,000 a month, he pointed out.

O'Callaghan said stopping the project would have a tremendous impact on Selwyn Chihong's employees, contractors and suppliers.

He also impressed on Veale that nobody is talking about a full-blown mine here.

The exploration program involves tunnelling 500 metres underground to obtain a large enough sample from the ore body to determine whether there is potential for a mine.

"In order to get to the next stage, the bankable feasibility stage, you need to do this for people to give you the money,” O'Callaghan said in his submissions. "It is very much a test. It is not a mini-mine by any stretch; it's a test.”

Veale, however, asked O'Callaghan if he does find grounds to revoke the exploration permit, should he then question his judgment because there are jobs at stake?