Fight Over New Prosperity Mine Challenges Federal Government's Environmental Assessment Powers

Teztan Biny (Fish Lake), courtesy www.teztanbiny.ca
“The only thing I can see is they are buying time. They're putting the project on life support,” said Chief Joe Alphonse of the Tletinqox-t'in and the tribal chairman of the Tsilhqot'in National Government, over the phone from his office in northern B.C.
 
On life support is Taseko Mines' latest effort to open a gold-copper mine in B.C.'s northern interior, in the heart of Tsilhqot'in & Secwepemc Nations' traditional territory. The Vancouver-based company has been attempting to get the mine up and running for over five years now, and has faced strong opposition along the way.
 
The project has been rejected by the federal government twice, both times after negative findings from a federal environmental assessment panel. The latest rejection, this past October, found that the mine's adverse effects greatly outweighed any economic benefits.
 
These negatives include impacts on the water quality in the area, including Fish Lake (known by the Tsilhqot'in as Teztan Biny), on fish populations and ecosystems, and on the traditional and cultural use of the land by First Nations people. There would also be significant impacts on the South Chilcotin grizzly bear population.
 
But the company isn't done yet and has filed two judicial reviews, both asking the Federal Court of Canada to throw out the latest decision. While the first request hinges on a dispute about the science behind the panel's finding, a review filed in late March is challenging the fairness of the review process itself, and could impact how the federal government consults with First Nations and what projects would be subject to future federal environmental assessments. 
 
From Prosperity to New Prosperity
 
The New Prosperity mine, as Taseko's project is called, would be a $1.5 billion undertaking that the company says will create 550 direct jobs and add $340 million to B.C.'s GDP. Its first version, the Prosperity Mine, was approved by the B.C. government after the provinces own environmental review in 2010, saying that while the mine would have a significant impact on the environmental, those were justified by the economic benefits.

But the federal government saw it differently, and rejected the mine a first time, based in large part on the company's proposal to drain Teztan Biny and use it as a tailings pond to hold toxic run-off from the mine, as well as the project's impact on traditional First Nations use of the land. Tetzan Biny is considered a sacred site by the Tsilhqot'in and is also known as one of the top 10 game fishing lakes in the province.
 
Because the finding hinged primarily on the draining of Fish Lake, Taseko revised the project and resubmitted as New Prosperity in 2012. While the new proposal removed the plan to drain Tetzan Biny and moved the tailings pond away from the lake, the federal review panel again found that the adverse impacts on the surrounding area – including the potential impact of tailings seepage on various lakes and watersheds, including Fish Lake, the impact on local fish and bear populations, and again the cultural impact – could not be justified by the financial benefits.
 
The Minister of the Environment took this recommendation to cabinet, and the government announced in February that the project was once again rejected.
 
Taseko goest to court
 
While Taseko is disputing the findings of the environmental assessment, more significantly it is also challenging the Environment Minister's process and the ability of the federal government to undertake assessments of mining projects. In their notice of application for judicial review filed in late March, they argue that the federal government should have waited for the company's first judicial review to be completed before making a decision.
 
But more importantly, that because the Minister and other government officials met with First Nations representatives opposed to the mine after the review was done, that the government went against procedural fairness and that the decision should be thrown out.
 
“It's about fairness and procedural fairness,” said company spokesperson Brian Battison in an interview with DeSmog Canada. “It's a very specific concept of law” that consultations must be conducted in a fair manner, he said. By meeting with mine opponents, and not giving Taseko the chance to respond, the government violated this rule and, Taseko argues, the decision should be quashed.
 
Andrew Gage, a staff lawyer with the West Coast Environmental Law (which has given financial support to the Tsilhqot'in in their fight against the mine), says that there is some basis in law for Taseko's request, but that their argument denies the responsibility of the government to consult with First Nations on projects that would impact their territory.
 
“Their challenge puts in question the obligation for high level consultation [by the federal government] with First Nations. They have a constitutional right to be consulted,” said Gage.
 
Chief Alphonse also questions Taseko's take on fairness. He points to the fact that Taseko has been able to pay lobbyists to argue on its behalf on Parliament Hill over the past several years, and has also had the backing of the B.C. provincial and local municipal governments who have lobbied parliamentarians as well.
 
While no lobbying rules have been broken, Chief Alphonse sees meeting with the government as his nation's only way to get their message across – and not as a violation of procedural protocol.
 
When reached for comment, the Canadian Environmental Assessment Agency wrote back that they are aware of the judicial review proceedings, but that “as these matters are before the Court, it would not be appropriate to comment at this time.”
 
While Taskeo is asking for the government's latest decision to be set aside – allowing cabinet to reconsider their decision and possibly approve the project – they are also asking for significant sections of the Canadian Environmental Assessment Act to be set aside, arguing that they violate the Canadian constitution.
 
Taseko's lawyers claim that sections 5, 6 and 7 of the Act – which essentially lay out the requirement for federal approval for certain projects to go ahead – go beyond the scope of the federal government's obligations to First Nations people, and also infringes on the constitutional division of powers which grants provinces jurisdiction over mineral rights.
 
Taseko is asking the federal court to either strike down these sections as unconstitutional.
 
A finding on behalf of Taseko would have a significant impact both on the federal government's duty to consult, but also on its ability to regulate any mining undertakings in the country. 
 
For his part, though, Gage doubts that the courts will side with Taseko. “I would be very surprised is they ruled in [Taseko's] favour,” he said.
 
Profit before all else?
 
Beyond the legal implications, Gage and Cheif Alphonse both question why Taseko is so adamant at pursuing the case. According to Battison, it's simply a matter of seeking out a fair hearing for an economically beneficial project, one that has been supported by the B.C. government.
 
“There's a lot of issues that are critical,” counters Gage. “[We need to question] what it suggests regarding our values to put whole lakes in danger of destruction.”
 
For Chief Alphonse, it's also a question of respect for the traditional territories of his people, and their cultural survival. First Nations communities of the B.C. interior continue to use the surrounding land for hunting and trapping, and the area has significant cultural and religious value. 
 
“It's one of our most spiritual places,” said Chief Alphonse, referring to Tetzan Biny. “This is no different than if we were asking to convert the Vatican into a casino.”
 
And that means that if the federal court rules in Taseko's favor, the Tsilhqot'in are willing to take it to the limit. 
 
“We'll go to the Supreme Court on this case,” he said.