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Case Brief: Taseko Mines v Canada (Environment), 2017 FC 1099; Taseko Mines v Canada (Environment), 2017 FC 1100

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CASE BRIEF

Taseko Mines v Canada (Environment), 2017 FC 1099; Taseko Mines v Canada (Environment), 2017 FC 1100

On December 5, 2017, the Federal Court dismissed two applications for judicial review brought by Taseko Mines Limited (“Taseko”), which sought review of a Review Panel Report made under the Canadian Environmental Assessment Act, 2012 and subsequent decisions by the Minister of Environment and Governor in Council, following the environmental assessment of the New Prosperity Gold-Copper Mine project. The Governor in Council determined that the significant adverse effects of the project could not be justified in the circumstances, upholding the federal government’s rejection of Taseko’s proposed mining project for a second time.

Background

The New Prosperity mine is a proposed $1.5 billion open-pit gold and copper mine located within the traditional territory of the Tsilhqot’in people, 125 km southwest of Williams Lake, British Columbia. It is Taseko’s second attempt to obtain approval for the project, which under the name of Prosperity, was rejected by the federal government in 2010 after an environmental assessment.

The area affected by the New Prosperity mine was not within the lands over which the Tsilhqot’in have proven Aboriginal title, but the area is subject to Aboriginal rights to hunt and trap which the Tsilhqot’in proved in 2007.

The central area of concern is Teztan Biny (Fish Lake), a site of cultural and spiritual significance to the Tsilhqot’in peoples. The original design of the Prosperity mine called for the draining of Teztan Biny in order to use it as a tailings pond. In its revised application, New Prosperity relocated the tailings pond and introduced a lake recirculation water management scheme.

The environmental assessment under CEAA, 2012 was summarized in six steps:

  1. The Minister of the Environment appointed the Review Panel;
  2. Taseko set out its position on whether the project would be likely to cause significant adverse environmental effects;
  3. The Review Panel held public hearings involving expert evidence and submissions from all interested parties;
  4. The Review Panel submitted its Report to the Minister, which concluded that the project was likely to cause significant adverse environmental effects;
  5. After reviewing the Report, the Minister determined that the project was likely to cause significant adverse environmental effects and referred the matter to the federal cabinet to decide whether those effects were justified in the circumstances; and
  6. The Minister released a decision statement setting out the decisions that the project was likely to cause significant adverse environmental effects that were not justified in the circumstances.

Consultation between the Tsilhqot’in National Government (TNG) and the federal government encompassed both the Panel process and subsequent consultations after the Review Panel Report was released.

Decisions

In the first application for judicial review, Taseko challenged the Review Panel Report’s conclusion that the toxic water seepage from the tailings pond and its impact on water quality in Teztan Biny and the surrounding area would be greater than Taseko had estimated.

After finding that Taseko was owed, and was provided, a high degree of procedural fairness during the Review Panel stage, the Court focused primarily on the technical conclusions of the Review Panel which it found reasonable in the circumstances and should not be interfered with.

Importantly, the Court supported the Review Panel’s resistance to Taseko’s reliance on “adaptive management”—which holds that environmental risks and mitigation measures can be dealt with during later stages of development—and its closer adherence to the legislative requirement that it acts in a precautionary manner and therefore, not defer important decisions to the next stage of the process.[1]

In its second application for judicial review, Taseko challenged the decisions of the Minister of the Environment and the federal cabinet that the New Prosperity mine was likely to cause significant adverse environmental effects that were not justified in the circumstances.  Taseko challenged the approval on the basis that it was not afforded procedural fairness and the provisions of CEAA, 2012 dealing with environmental effects on aboriginal people are ultra vires the federal government and therefore, unconstitutional.

In contrast to the Review Panel stage of the environmental assessment, the Court found that Taseko was owed a minimal degree of procedural fairness during the Minister’s decision-making process (which the Minister in fact went above and beyond) and was owed no duty of fairness during the cabinet’s process.  The court was not prepared to determine the constitutional question in a vacuum, but suggested the sections at issue were presumptively constitutional.

Why These Cases Matter

The important aspect of the first judicial review is the rejection by the court of Taseko’s adaptive management approach.  Unfortunately, too often governments are prepared to provide proponents with “environmental credits” when significant environmental effects are identified which cannot be mitigated or the technology is untested.  The court reminds us that the precautionary principle is a guiding feature of environmental assessment that needs to be observed.

The second judicial review considered the intersection of the duty of fairness owed to project proponents and the duty to consult owed to First Nations. The Court rejected Taseko’s claim that it was entitled to an identical process as the consultation process accorded to the TNG. The court also took the opportunity to criticize aspects of the Minister’s consultation that were deficient, despite the decision having been favourable to the Tsilhqot’in.

In its submissions on procedural fairness, Taseko had taken issue with the asymmetry of the Crown’s treatment of it and the TNG, and it had argued that there are certain circumstances wherein procedural fairness would require that, as the project proponent, it be made aware of submissions made by a First Nation. Specifically, after the Review Panel Report had been released, the TNG was granted a meeting with the Minister and provided written submissions, which Taseko claimed it should have been informed of and given a chance to respond to.

The Court found that procedural fairness does not provide Taseko a right to take part in these consultations and nor does it always require symmetry in the Crown’s treatment of the parties. In fact, there are circumstances where fairness will require some degree of asymmetry, such as when the duty to consult and accommodate is involved. The Court acknowledged that in certain circumstances fairness would require that the Minister inform Taseko if she intended to change her position in response to TNG’s submissions, or if TNG’s submissions contained substantially new information, but in this case Taseko was unable to establish that such circumstances existed.

This meant that these submissions resulted in no prejudice to Taseko, as they contained nothing new, but it also revealed flaws in the Minister’s consultation with the Tsilhqot’in. Citing Gitxaala Nation v Canada, 2016 FCA 187, the Court reiterated that post-Report consultation is not only appropriate, it involves meaningful two-way dialogue between the Crown and affected First Nations. Notwithstanding that Taseko’s application was rejected, the Court indicated that the Tsilhqot’in would have had a strong argument that consultation was inadequate.

[1] 2017 FC 1099 at paras. 120-124.

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