An assessment board's review of an advanced underground exploration project was substantially incomplete, says a lawyer representing the Liard First Nation of Watson Lake.

Drew Mildon said this week in his submissions to Yukon Supreme Court Justice Ron Veale the environmental assessment into the project by Selwyn Chihong Mining failed to address significant water management issues raised by the First Nation.

It doesn't matter that the project was scheduled to go before the Yukon Water Board for further review at a later date, he suggested in his arguments.

Yukon Environmental and Socio-economic Assessment Board (YESAB) legislation, Mildon insisted, says an environment assessment must assess all aspects of the project where there is potential for impacts on the environment.

"I think what we are saying is here is a major issue placed before the board and the decision-maker (the Yukon government), and this major issue is not assessed,” Mildon told the judge.

Veale also heard several hours of rebuttal Monday and Tuesday from lawyers representing the government,YESAB and Selwyn Chihong.

All three parties took turns attacking the First Nation's position, maintaining YESAB's work was thorough, and that the government's decision to accept the recommendation to approve the project last July was sound. (See separate story below.)

But the Liard First Nation wants the government's approval thrown out.

Veale reserved his decision at the close of proceedings Tuesday afternoon, indicating he couldn't say how long it will take to issue his ruling but that he'll do it as quickly as he can.

Selwyn Chihong has already mobilized the equipment and supplies necessary to proceed with its $65-million underground project this summer along the Yukon-N.W.T. border. It has applied for a water licence, and is waiting for a decision from the water board.

The Liard First Nation is arguing that without an adequate environmental assessment, the government was legally bound to reject YESAB's recommendation for approval.

The lawyer told Veale once the First Nation had identified its general concerns regarding impacts on wildlife and particularly water, YESAB was obligated to provide the First Nation with sufficient details to provide a clear understanding of what was being proposed.

It's not enough, suggested Mildon, for YESAB to simply acknowledge the concern and deal with it by recommending the water board take a closer look at it later.

He told the judge, for example, there was no analysis of how the project would impact the flow of ground water.

The company is already dealing with unexpected water leaking from previous drill holes at the site, he said, prompting an inquisitive expression from the judge.

Mildon said there was no specific information regarding plans to discharge treated water into Don Creek, and there is potential for acidic metals draining from rock the company plans to mine.

There are questions surrounding the ability of the water treatment plant to handle the job, and whether the proposed storage and settling ponds are large enough, he said.

Mildon said evidence put before YESAB supporting the feasibility of the treatment facility actually came from a different type of plant.

How, the lawyer asked, does the screening agency respond to the uncertainty?

He said it writes in a recommendation to ensure Selwyn Chihong proves the treat plant will work before it becomes operational.

Even the approval document issued by the government's director of mineral resources acknowledges all kinds of information voids but suggests they can be dealt with later by the water board, Mildon argued.

He said the law, however, says the government was obligated to consult with First Nations on matters that have the potential of affecting their traditional territories.

Consulting, Mildon told Veale, doesn't just mean mailing the First Nation an invitation to comment on the project proposal.

It means ensuring the First Nation has sufficient information to provide well-informed input, he argued.

"If we are going to be meaningfully consulted, we have to understand what the impacts are going to be,” Mildon argued. "In order to do that, we have to have a complete assessment.”

The First Nation's lawyer reminded Veale about the importance the Supreme Court of Canada has placed on the duty of territorial and provincial governments to consult first nations.

Veale was also reminded of his own decision supporting the water board's rejection of a water licence for Western Copper's Carmacks Copper Project.

That decision, Mildon pointed out, upholds the independence of both YESAB and the water board to do their own work and reach their own conclusions.

It's not enough for YESAB to recommend the water board deal with a particular issue later, and it's not enough for the government to accept such a recommendation when approving a project, Mildon argued.

YESAB's Watson Lake office, he emphasized, was made aware of the First Nation's concerns about the potential impact on fish and their habitat.

But since there was no thorough assessment and no substantive information flow on what exactly was being proposed, Mildon argued, there was no ability for the First Nation to form an educated position.

Once again, he suggested, YESAB recommended the water board be left to fill in the details about water discharge conditions and monitoring programs.

"The Liard First Nation is saying we need the information, you have to do the assessment so that we will know if there is going to be an impact on our fish, and it would be great if you can quantify that.”

Mildon told the judge the project by Selwyn Chihong is, after all, anything but minor.

The company, he pointed out, is planning to mine 200,000 tonnes of rock to form its bulk sample, and conduct a substantial underground exploration drill program.