VANCOUVER – Taseko Mines has applied for a second judicial review of federal government's rejection of the proposed New Prosperity gold-copper mine project. Environment Canada has twice refused permission for the project 120 km southwest of Williams Lake, BC, first in 2010 and again in 2013.
The problem is the disputed effect of the project on Fish Lake, considered sacred to the Tsilhqot’in First Nations.
Taseko president and CEO Russ Hallbauer said in news release that the New Prosperity project, and specifically Taseko's plan to save Fish Lake, was not evaluated in a fair, open and transparent manner. "We will seek to rectify both the failed process and the decision that stemmed from it in a court of law, the only reasonable option open to us."
Among Taseko's claims are that government officials held inappropriate closed door meetings with opponents of the proposed mine without Taseko's knowledge or informing the company of the content of those meetings.
"We believe that the final government decision failed to consider critical information submitted by the company and thus failed to fully understand our commitment and ability to protect the environment," added Hallbauer. "We were never given a fair opportunity to correct any misrepresentations about the project, nor were we allowed to clarify any misunderstanding on our plan to save Fish Lake."
Taseko is asking the Federal Court to set aside decisions by the CEAA, the Minister of Environment and the Governor in Council because of "a failure to observe the principles of natural justice and procedural fairness."
Details of the project are available at NewProsperityProject.ca.
Taseko can, unfortunately, waste even more taxpayer’s, shareholder’s, and First Nation’s money by dragging this through a judicial review but there is little likelihood that they will be successful. They don’t have a strong case at all; indeed, they are in a near hopeless position because their mining plan is unworkable, they are on unceded and culturally significant Tsilhqot’in land, and both the Canadian Environmental Assessment Act, 2012 (CEAA 2012 see Section 5(c)”With respect to aboriginal peoples”)and Constitutional law is firmly on the side of the Tsilhqot’in.
The Supreme Court of Canada has ruled many times that before any project proponent can infringe on Aboriginal lands, the Crown must 1) engage First Nations in meaningful consultation, 2) they must accommodate First Nations objections and concerns, and 3) they must fairly compensate the affected First Nations for any damage or loss of the use of their traditional lands. Whenever conflict over land use arises, the Court says that Aboriginal rights must be the paramount consideration for the Crown and the interests of First Nations take priority over corporate interests (similarly, the employment aspirations of Williams Lake are of little consequence).
Neither the Crown nor Taseko have followed the required consultation process for the Prosperity or New Prosperity Mine project. Nobody has attempted to accommodate First Nations interests and concerns, and clearly, nobody has presented an acceptable compensation plan to the Tsilhqot’in First Nation. Furthermore, this land is subject to both a pending land claim and a current legal challenge in the Supreme Court of Canada (over Aboriginal title), and nothing can be done to those lands until all claims are settled.
Since the 1980s, First Nations have been on a roll with over 190 consecutive legal victories on Constitutional grounds (perhaps Mr. Hallbauer should pick up a copy of Bill Gallagher’s book Resource Rulers). Despite this trend, governments and corporations such as Taseko remain in denial about the new reality: Aboriginal groups effectively hold veto power over any significant resource development on their traditional lands.
If, by some peculiar judicial caprice, Taseko succeeds in the judicial review – then what? There is no chance that they will survive the inevitable series of legal challenges by Tsilhqot’in First Nation on the matter of aboriginal title and rights. This conflict will be in the Courts for as long as the sun shines, the grass grows, and the rivers flow.
The SCOC has reaffirmed many times that when conflict over land use arises, Aboriginal rights take priority over corporate interests. Despite this fact, Governments and corporations such as Taseko remain in denial about the new reality: Aboriginal groups effectively hold veto power over any significant resource development on their traditional lands. Taseko seems unwilling to accept this new kind of relationship, hence, this project will ultimately fail to launch.
As for Taseko’s judicial reviews… they have little hope of succeeding. Taseko failed to “consult, accommodate and compensate” as Constitutional law requires and the Minister is in full compliance with the Environmental Assessment Act (see Section 5(c) “With respect to Aboriginal peoples”).