The Legal Challenge to Save Teztan Biny (Fish Lake) Continues!
The Tsilhqot’in Nation needs your help to fend off the ongoing Taseko legal tactics.
There seems to be no end to the ways the Tsilhqot’in must defend their pristine territory at Teztan Biny (Fish Lake) from the plans of Taseko Mines Ltd. to turn it into an open pit gold and copper mine. The federal government has rejected the mine — twice. But B.C. issued exploration permits that allow for extensive drilling and road building in Tsilhqot’in territory, even though the mine cannot legally be built.
The Tsilhqot’in National Government (TNG) has been fighting the company at every step. To date, Taseko has lost virtually every motion that it has brought. But that doesn’t stop the onslaught.
The Tsilhqot’in aim to overturn permits that allow Taseko’s incursion into sacred land. With RAVEN’s help, they have secured injunctions which have held the company off. But the bigger win can only come if the Nation can afford the cost of ongoing litigation to put a stop to the project, once and for all.
A Brief History of a Long Struggle
In 2016, Taseko filed two separate judicial reviews arising from the rejection of the New Prosperity Mine — the first sought to set aside the scathing report of the independent federal environmental review panel, and the second judicial review sought to set aside the federal government’s rejection of the project. The two judicial reviews were heard one after another by the same judge at the end of January 2017.
In early December, 2017, The Federal Court dismissed Taseko’s last-ditch attempt to overturn the federal rejection of their doomed project, upholding two previous Canadian Environmental Assessments (EAs).
There was a lot at stake with the judicial reviews. The legal victory demonstrates that environmental assessment can work, and companies like Taseko cannot overturn the results of a comprehensive environmental review (and the efforts of First Nations, concerned citizens and environmental organizations) simply by pouring its resources into litigation and outspending other parties until they get the result that they want. The Tsilhqot’in have established that no must mean no.
Taseko claimed that the Tsilhqot’in National Government had greater access to federal ministers and their staff after the panel review hearing, which in their minds constituted a breach of procedural fairness. In dismissing this claim, the judge found that, once past the panel review stage, Taseko was owed a minimal degree of procedural fairness, and this was satisfied. In fact, the minister went “above and beyond procedural fairness requirements”. The decision goes on to describe in detail Taseko’s own efforts at persuading the federal government to approve the mine – including attempts to enlist the (then) Premier Clark and Minister Bennett to meet with the feds on Taseko’s behalf.
The judge then tersely dismisses the whole argument:
“Taseko was active in engaging political contacts to advance their cause. This in itself leads to an asymmetrical process. The TNG (Tsilhqotin National Government) seems to have been more successful at this politicized course of action but that forms no basis for concluding that Taseko was denied the level of procedural fairness that the process required.”
Further to this Taseko argued that the rejection of its mine constituted a breach of the Bill of Rights, but failed to provide any support for this claim, which was dismissed.
Taseko also brought a novel constitutional challenge to the Canadian Environmental Assessment Act, 2012, arguing that the federal government cannot lawfully stop a project from proceeding on the basis of environmental concerns, if the province has approved the project.
In advancing this argument “Taseko seeks a radical conclusion which deviates significantly from the jurisprudence”. Accepting Taseko’s arguments would mean privileging provincial powers in a way not contemplated by the Constitution which would “violate the principle of cooperative federalism”. In the absence of a proper constitutional factual basis, the judge declined to rule on this point.
We do not know whether Taseko will attempt to bring another frivolous action to the courts. Meanwhile we continue our very long-term commitment to protect Fish Lake and stand with the Tsilhqot’in.
Together, we can – and will – protect Teztan Biny once and for all.
Blue Gold: The Tsilhqot’in Fight for Teztan Biny (Fish Lake) from Susan Smitten on Vimeo.
Where is Fish Lake?
Fish Lake (Teztan Biny), Little Fish Lake (Yanah Biny) and Nabas (general area) are in a remote and beautiful area of profound cultural and spiritual importance to the Tsilhqot’in Nation. The area is very close to the salmon-rich Taseko and Chilko Rivers, and it also provides critical wetlands and lake habitat for wild rainbow trout, moose, grizzly bear, and many other mammals and migratory birds.
For twenty years Taseko Mines Limited (TML) has tried to get approval for a low-grade, open-pit copper and gold mine at Teztan Biny (Fish Lake.) The Prosperity Mine proposal is one of the most contested mining projects in Canada.
What are funds needed for?
The TNG has held its own in these proceedings for months, first obtaining standing as a party, then preparing its evidence, building its case, and dealing with Taseko’s series of motions including this latest judicial review. It has been able to do so only with the help of your funding. Currently there are no active cases but Taseko’s history of continued legal pressure mean we need to continue to stand by ready to offer support.
Wasn’t this mine rejected before?
Yes. Twice! After a rejection of the Prosperity gold-copper mine project in 2010 by the federal government, based on a scathing independent panel report describing unprecedented impacts to the environment, and to the Tsilhqot’in current use, rights and culture, Taseko Mines Ltd. quickly announced it had ‘re-jigged’ the proposal and would re-submit. The second plan became the New Prosperity Mine proposal.
On February 26, 2014, the Minister of the Environment, Hon. Leona Aglukkaq, issued a decision statement regarding the New Prosperity Mine in British Columbia’s Chilcotin district, concluding that “the New Prosperity Mine project is likely to cause significant adverse environmental effects that cannot be mitigated. The Governor in Council (the cabinet) has determined that those effects are not justified in the circumstances; therefore the project may not proceed.”
Minister’s Press Release: http://www.ceaa-acee.gc.ca/050/document-eng.cfm?document=98459
Decision Statement: http://www.ceaa-acee.gc.ca/050/documents/p63928/98458E.pdf
RAVEN supported the Tsilhqot’in through both federal environmental reviews. Through this second round, once again through the support of incredible donors, it was possible for the Xeni Gwet’in First Nation and Tsilhqot’in National Government to participate fully with the best possible science and legal experts.
In December 2017, the Federal Court dismissed Taseko’s last-ditch attempt to overturn the federal rejection of their doomed “New Prosperity” mine at Teztan Biny (Fish Lake).
Chief Russell Myers Ross, Chief of Yunesit’in and Director of the Tsilhqot’in National Government, issued the following statement: “The Tsilhqot’in share gratitude in the conclusion of two fair judgements that serve as vindication to the decades of struggle to protect Nabas and Teztan Biny. In my opinion, these efforts by Taseko Mines Ltd. represents a waste of time and public money, and I believe it is necessary for this company to move on from fantasizing about this destructive project. This area remains significant to our Nation and this conflict is one reason why we have moved towards developing the Dasiqox Tribal Park – to move towards a space of reconciliation, reciprocity and consent.”
We celebrated with the Tsilhqot’in when the first CEAA panel issued its final report in 2010 on the Prosperity Mine proposal. Based on the overwhelming evidence brought forward during public hearings, the independent panel concluded that:
- the mine would have “cumulative high and irreversible impacts” in a number of areas, including Tsilhqot’in people and culture,
- the false “Prosperity Lake” could not begin to meet DFO’s requirements for “no net loss,”
- the impacts on blue-listed (endangered) grizzly bears would also be cumulative and irreversible, and
- navigation under the Navigable Waters Protection Act would be impossible.
The Panel also clearly described what would be at stake for the Tsilhqot’in people: “The Panel has determined that the loss of Teztan Biny (Fish Lake) and Nabas (Little Fish Lake) areas for current use activities, ceremonies, teaching, and cultural and spiritual practices would be irreversible, of high magnitude and have a long term effect on the Tsilhqot’in” [Report, p. 203]. The Panel confirmed that “the island in Teztan Biny (Fish Lake), which would be destroyed by the mine waste storage area, is a place of spiritual power and healing for the Tsilhqot’in.”
In the second CEAA review of the New Prosperity Mine proposal, the federal report on the proposed New Prosperity mine, standing at the headwaters of the Taseko, Chilko, Chilcotin and Fraser River systems, indicated the project would:
- pose an unacceptable threat to one of the provinces greatest resources;
- destroy fresh water lakes and contaminate others;
- have severe impacts on some of the last, best grizzly bear habitat available to the endangered dry land interior grizzly population;
- have effects on Tsilhqot’in culture that could not be mitigated.
The area in question has been identified by distinguished ethno-botanist Nancy Turner as a “cultural keystone place” of great spiritual and cultural significance to the Tsilhqot’in people.
In the Tsilhqot’in media release, leadership once again emphasized that industry needs to realize it cannot trample Aboriginal rights and the environment like a giant in a sandbox. They have repeatedly called for an end to what has become a costly battle that has dragged on since at least 1995, when Taseko Mines Ltd. was first told by the federal Department of Fisheries and Oceans not to waste any further time or money pursuing this unacceptable project.
The federal minister’s decision to issue a second rejection was rooted in the independent CEAA panel report. On October 31, 2013, the panel reviewing the New Prosperity mine proposal released a scathing report that confirmed what the Tsilhqot’in have said all along: this project would have devastating cultural and environmental impacts, would contaminate Teztan Biny (Fish Lake), and would destroy an area of unique and special significance to the Tsilhqot’in people – as a critical fishery, as a cultural school, as a sacred site, and as some of their last intact hunting and trapping grounds.
Who Has Helped?
Thanks to Fitzhenry Family Foundation, Donner Canadian Foundation, Sierra Club Canada, Wilburforce Foundation, Environmental Mining Education Foundation and individual donors, we raised more than $200,000 needed for the science and experts who testified at the CEAA hearings.
Commentary on the Tsilhqot’in Aboriginal Title Win
Tsilhqot’in Nation v British Columbia, 2014 SCC 44.
Provided by Woodward & Company LLP
On June 26, 2014, the Supreme Court of Canada unanimously declared that the Tsilhqot’in Nation have Aboriginal Title to approximately 1,700 square kilometres of land southwest of Williams Lake, BC. The Court also declared that British Columbia breached its duty to consult the Tsilhqot’in Nation when it issued logging licences on their traditional lands nearly 20 years ago.
This court decision, the first in Canadian history to formally recognize Aboriginal Title, is a victory for the Tsilhqot’in people, who have been fighting for control over their traditional lands for one-hundred and fifty years.
Woodward & Company LLP has been the Tsilhqot’in’s legal counsel for nearly 25 years. We fought the 339-day trial in the BC Supreme Court on their behalf and represented them at the Court of Appeal and the Supreme Court of Canada. We are honoured and grateful to represent such a courageous Nation to the culmination of this victory.
The test for Aboriginal Title
The Supreme Court of Canada affirmed the test for Aboriginal title as set out in Delgamuukw v British Columbia which requires an Aboriginal group to show the land was exclusively occupied prior to sovereignty. In applying the test, a court:
… must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.
This is an important change from the Court of Appeal decision which held that an Aboriginal group must demonstrate that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty. The Supreme Court rejected the “postage-stamp” theory and held that Aboriginal Title is not confined to specific sites of settlement but also includes broad territorial tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources.
Significantly, the Court reiterated a critical direction from the Haida Nation case, once again stating that governments are under a positive duty to negotiate in good faith to resolve claims to ancestral lands.
Powers of Aboriginal Title Holders
As recognized holders of Aboriginal title, the Tsilhqot’in Nation now has the right to decide how Aboriginal title lands will be used; the right of enjoyment and occupancy of the land; the right to possess the land and the right to the economic benefits of the land. The unanimous Court specifically set out that this is not merely a right to first refusal but the right to proactively control and manage the land.
The Supreme Court found that while Aboriginal title confers ownership rights similar to fee simple, there are limits to the right. Firstly, the title lands may only be alienated to the Crown. Secondly, as title is a collective right held for both the present and future generations, the land cannot be used in a way that would substantially deprive future generations of the benefits that flow from the land.
Role of Crown in respect of Aboriginal Title Lands
The Court held that once Aboriginal title is established by a court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group before approving developments on their land.
Absent consent, development of title land cannot proceed unless the Crown satisfies the demanding test for justifying infringement of Aboriginal title.
The test for justification requires the government to show: (1) that it discharged its duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.
The compelling and substantial objective must be considered from the Aboriginal perspective as well as from the perspective of the broader public. To constitute a compelling and substantial objective, it must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective. In our opinion, it will be very difficult to justify any infringement without the consent of an Aboriginal title-holder.
Before Aboriginal title is established in the courts or recognized by the Crown, the Crown must consult with any Aboriginal groups that assert title to the land about the proposed land uses, and if appropriate, accommodate those groups. The level of consultation and accommodation required in each case will continue to be determined on the standard set out by the Court in Haida Nation. However, once title is established, the Crown action will be judged on the higher fiduciary standard of justified infringement. Once title is proven, it may be necessary to revisit past Crown decisions to determine if the Crown has met this higher fiduciary duty.
Application of provincial laws to Aboriginal Title lands
The Court found that British Columbia laws of general application may apply to Aboriginal title lands, as long as any infringements are justified under the Sparrow test. In other words, Aboriginal groups can no longer challenge provincial laws on the basis of s. 91(24) of the Constitution Act, 1867, or the doctrine of interjurisdictional immunity.
Laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests of British Columbia will probably not infringe Aboriginal title. In respect of the Forest Act, under which BC issued the initial logging licences which initiated this legal battle, the Court found that as a matter of interpretation of the statute, the legislature intended it to apply to lands claimed as title lands until title is proven in court. However, once title is confirmed, the lands were held to be “vested” in the Aboriginal group and are no longer Crown lands.
What this Means for First Nations
There are a number of important implications that should immediately guide the decisions of First Nations’ governments and other governments:
1. If British Columbia and industry proponents were negotiating and consulting based on the postage stamp view of Aboriginal title, and we expect they were, they will need to re-evaluate their negotiation positions and mandates.
2. The SCC has now cautioned the Crown twice (in Haida Nation and Tsilhqot’in Nation) that it is not enough to simply consult and accommodate about unresolved land claims. The Crown has a positive legal duty to actively take steps to implement the direction in Tsilhqot’in Nation about Aboriginal title and resolve outstanding claims through negotiations.
3. First Nations currently engaged in consultation processes should re-asses the strength of their claims to title based on Tsilhqot’in Nation and determine whether they wish to submit new evidence and whether the level of consultation and accommodation they are receiving is appropriate.
4. First Nations wishing to protect traditional lands from unsustainable exploitation and development now have a much larger tool in their toolbox. We expect that, within this new context, injunctions are more likely to be found in favour of a First Nation with a strong Aboriginal title claim.
5. Given the potential benefits of an Aboriginal title finding, First Nations will likely want to weigh the cost of obtaining a declaration of title against the potential benefits that would arise from recognized land ownership that includes a broad spectrum of economic benefits and rights.
At the trial level, the Tsilhqot’in also obtained a right to hunt and trap, and to trade the products of these activities, to maintain a moderate livelihood throughout the entire claim area. This means that the Crown cannot use the lands that were not declared Aboriginal title lands in ways that will interfere with the meaningful exercise of those rights – there must be sufficient protected natural habitat to provide a harvestable surplus of the species on which the Tsilhqot’in depend.
While further implications will arise in the future, it is fair to say the Tsilhqot’in have won a major victory in the rights of First Nations to protect, enjoy, and control their traditional lands.