New Prosperity mine is dead. Why are the Tŝilhqot’in still in court?
By Ana Simeon / Photo by Nathan Einbinder
On May 14, 2020, the Supreme Court of Canada delivered a final coup de grâce to the moribund “New Prosperity” mine project in Tŝilhqot’in territory. The twice-rejected mine proposal had been maintained on life support for years by a series of legal and political manoeuvres Taseko Mines pursued with a fanaticism and a brashness rarely seen even in an industry with a reputation for fraught relationships with Indigenous communities.
When “New Prosperity” was rejected by the federal Cabinet in 2014, based on a scathing environmental review, Taseko applied for a judicial review of both the Cabinet decision and the environmental review. That by itself is not an unusual step for a company to take when a project is rejected, but the arguments put forward by Taseko spoke volumes about the company’s sense of entitlement. For example, Taseko challenged the constitutionality of the Canadian Environmental Assessment Act (CEAA). The company also claimed that it was owed the same duty to consult as the Tŝilhqot’in, thereby arrogating to itself the same status enjoyed by an Indigenous Nation under section 35 of the Constitution.
Nor surprisingly, in a December 2017 decision federal court justice Phelan rejected most of Taseko’s arguments. Noting that the legal doctrines advanced by Taseko “departed from previous jurisprudence”, he refused even to entertain the CEAA challenge. Taseko then went to the Federal Court of Appeal, and was struck down again when a panel of three justices fully affirmed Judge Phelan’s previous rejection. Justice De Montigny had this to say about Taseko’s claim that it was owed the same duty to consult as the Tŝilhqot’in:
“I am inclined to think that Taseko’s proposal would trivialize the duty to consult and empty it of its true content. It must be remembered that the duty to consult (and accommodate) is part of a process of reconciliation, which itself flows from rights guaranteed by section 35(1) of the Constitution Act, 1982 (…). It could hardly be said that the duty to consult supports and promotes reconciliation and re-affirms the nation-to-nation relationships with the First Nations if the Crown was equally to consult with the proponent and, for that matter, any other interested parties.” (emphasis ours)
There was only one more rung left on the federal judicial ladder: the top one, and Taseko reached for it. In 2019, it petitioned the Supreme Court of Canada for leave to appeal. As we have seen, the Supreme Court’s “no” reinforced the message that the various levels of government and judiciary (not to mention the Tŝilhqot’in!) have been trying to convey to Taseko these past 10 years. And this time, the “no” is final.
There is no doubt that this final rejection will have a serious impact on the company. Questions will be asked in shareholders’ meetings; heads may roll. But – incredibly – Taseko still has options. For years, the company has been clearing an alternative route to bypass the federal obstacle course. Back in 2010, the company had won the green light from the B.C. government for its original “Prosperity” mine proposal (the “Prosperity” proposal was subsequently also rejected by the federal government, rendering the B.C. approval moot). Nevertheless, Taseko continued to assiduously cultivate B.C. government ministers and top civil servants, and even attempted to enlist the former Premier Clark and Minister Bennett to meet with federal ministers on Taseko’s behalf, as described in detail in Judge Phelan’s decision.
Then, in July 2017, days before leaving office, the outgoing government of Premier Christy Clark gave Taseko an exploration permit, as Taseko already held mineral leases and tenure rights for gold and copper in the area under the Mineral Tenure Act. Armed with the exploration permit – which does not require federal approval – Taseko was getting ready to roll with an extensive program of logging, drilling and excavation in the coveted Teztan Biny/Nabaŝ area.
“Exploratory drilling” sounds like a minor disturbance. It is not. Nor is it the first and only such incursion the Tŝilhqot’in have had to endure in the Teztan Biny/Nabaŝ area. Taseko’s 2017 permits allow it to drill 122 exploratory holes and excavate 367 test pits – twice and six times as many, respectively, as during their first exploratory foray in 2012 which nevertheless left the landscape covered with the debris of timber harvesting and the imprints of industrial heavy equipment.
Even as the federal door was closing on “New Prosperity” mine, Taseko’s strategy of courting the provincial government enabled it to open a window that might one day be useful for pursuing a new mining project. While the Supreme Court of Canada has put a permanent kibosh on “New Prosperity”, Taseko still has its mineral leases, which don’t expire until 2035. And it has the exploratory drilling permits which, once issued, cannot be cancelled by the BC government without courting the risk of becoming the next target of Taseko’s litigation Blitzkrieg. There is nothing to stop Taseko from dreaming up a new mining proposal in an adjacent area and starting the whole process all over again.
Or so Taseko may have thought – until the Tŝilhqot’in deftly parried that move.
In 2017, the Tŝilhqot’in filed a civil action for infringement of Tsilhqot’in Aboriginal rights against Taseko Mines and the BC government. Short of paying Taseko off, this is the only way to invalidate the drilling permits. The civil action is yet to be heard; in the meantime, the Tsilhqot’in have won an injunction prohibiting Taseko from conducting any drilling or works until the civil action has been heard and determined.
In granting the injunction, Madam Justice Matthew relied on a powerful opinion by Justice Grauer in an earlier proceeding: “Each new incursion serves only to narrow further the habitat left to them in which to exercise their traditional rights. Consequently, each new incursion becomes more significant than the last. Each newly cleared trail remains a scar, for although reclamation is required, restoration is impossible. The damage is irreparable.”
The Tŝilhsqot’in civil action asks the BC Supreme Court to permanently quash (cancel) the drilling permits and to declare that the Tŝilhqot’in have Aboriginal rights to fish in the Teztan Biny/Nabaŝ area. If the Nation wins, the fact that they would have “proven” Aboriginal rights to fish as well as “proven” rights to hunt and trap birds and animals (confirmed through previous litigation by the Tŝilhqot’in) would become a strong deterrent to any future mining company that ventures to pursue projects in Tŝilhqot’in territory without Tŝilhqot’in consent.