Representatives from the Tsilhqot’in National Government were in the B.C. Supreme Court this week asking for an immediate injunction to stop Taseko’s exploratory drilling for the controversial open-pit New Prosperity Mine from beginning August 7.
To the dismay of the Tsilhqot’in, B.C. issued Taseko exploratory permits in the dying days of the former BC Liberal government while the Tsilhqot’in were under a wildfire evacuation order — even though the $1.5 billion gold and copper mine project itself has been twice rejected by the federal government in 2010 and again in 2014.
A court decision on the injunction is expected this week.
But the fight both for and against the permits doesn’t stop there.
The Tsilhqot’in request for an injunction comes as the Canadian Environmental Assessment Agency (CEAA) has stepped into the fray, issuing a cease and desist order to Taseko, warning any exploratory drilling by Taseko could be in violation of federal environmental laws.
“The agency is of the view that the proposed activities may cause an environmental effect,” says the letter to Taseko, signed by Kristin Coverley, senior compliance enforcement officer.
The order warns that enforcement action may be taken if Taseko does not comply with the CEAA requirements and each day work proceeds will be considered a separate federal offence.
But Taseko is hitting back with claims that the section of the Act cited by CEAA applies only to construction or operation of the mine and not to exploration activities.
“None of the work involves construction or operation of a mine,” says a letter to the agency from John McManus, Taseko’s chief operating officer.
If the CEAA interpretation stood “it would result in absurd and unconstitutional effects,” McManus wrote.
The ruling could put all mining exploration in Canada at risk as it suggests that even preliminary exploration would first need a full federal environmental review, he wrote.
Tsilhqot’in National Government lawyer Jay Nelson said it is hard to imagine that the company would ignore the cease and desist order and start the work at its own risk.
“But it is conceivable that the company could proceed and openly defy the federal regulator,” Nelson told DeSmog Canada.
“We haven’t had any assurance that the company is going to respect that [federal] direction, so there is a risk of harm to the Tsilhqot’in.”
The permits would allow Taseko to build 76 kilometres of trails, drill 122 holes, excavate 367 test pits and cut 20 kilometres of seismic lines in an area of prime cultural importance to the Tsilhqot’in Nation.
The exploration permits place the province firmly at odds with the federal government, which cited severe environmental damage and adverse effects on Tsilhqot’in culture and aboriginal rights when it turned down the mine proposal in both 2010 and 2014.
The controversial permits have landed the new B.C. Minister of Energy, Mines and Petroleum Resources Minister Michelle Mungall with a dilemma.
Mungall was not available for comment but a ministry background statement provided to DeSmog Canada said the timing of the permit decision was unfortunate “but a regional statutory decision maker must balance procedural fairness and the repeated extensions already provided at the request of the Tsilhqot’in National Government (TNG).”
Statutory decision makers are independent civil servants, meaning their decisions are not meant to be influenced by political considerations.
Such decisions are not political and are made “solely by the statutory decision maker, who, in this case, was a senior permitting inspector located in Kamloops,” according to the ministry’s statement, which adds that the permits do not authorize Taseko to begin mining at the site and include 37 conditions to address concerns raised by the Tsilhqot’in, including cultural heritage assessments in exploration areas.
B.C. Premier John Horgan’s mandate letter to Mungall emphasizes that the government will be adopting and implementing the United Nations Declaration on the Rights of Indigenous Peoples and the Calls To Action of the Truth and Reconciliation Commission.
Nelson said he hopes the NDP government will usher in a new attitude towards indigenous people.
“I do really feel that this latest legal skirmish with Taseko hits on the need for a new approach,” he said.
“For all this to go forward for a mine that the federal government has rejected, to inflict that sort of damage on people’s culture and lives seems over the line and shows a disregard of aboriginal interests.”
If exploration goes ahead, but the federal government continues to reject the mine, a large amount of damage will have been done for no reason, he added.
The timing of the provincial permits incensed the Tsilhqot’in Nation, who, for decades, have fought Taseko’s proposal for an open pit gold and copper mine.
Chiefs are now raising questions about the independence of the decision and questioning whether the new NDP government can revoke the permits.
“It just boggles my mind that any statutory decision-maker should make this decision when the Liberals were ending their reign and a new government coming into play,” said Chief Roger William, of the Xeni Gwet’in First Nation and vice-chair of the Tsilhqot’in National Government..
“They say it’s non–political, but I will always wonder because it’s a decision we have been waiting for since February this year and the timing makes no sense because of the state of emergency with the fires,” William told DeSmog Canada.
“We are going to be sitting down with (Premier John) Horgan and the ministers. We want to get rid of this issue for once and for all,” he said.
Andrew Gage, West Coast Environmental Law staff counsel, said that, under the Mines Act, it seems clear that, although the permits for the New Prosperity Mine exploration cannot be revoked, they could be amended.
“It gives decision-makers complete freedom to review and revisit issues after licensure and to limit the term of the permit,” he said.
One section of the Act gives the minister the power to take any necessary action.
“If the minister considers it to be necessary in the public interest, the minister, in respect of the issuing of permits, has and may exercise all the powers that the chief inspector may exercise under this Act,” it says.
The provisions of the Act have twice been backed by the B.C. Court of Appeal, Gage said.
That means the minister could step in and take an action such as suspending the permits until the company obtains federal approval, he suggested.
However, it is not known whether Taseko, which previously sued the federal government over its decision to reject the New Prosperity Mine, could sue the province if the permits are changed.
Gage believes Taseko is unlikely to sue under the Mines Act as the wording is solid, but, looking at the company track record, Nelson believes there could be a risk.
“The company certainly sent a message to government that, if the permits weren’t granted, they would be looking at legal action,” Nelson said.
While the Tsilhqot’in people wait for a decision on the injunction, William is wondering what will happen if the work goes ahead.
“If the injunction is not issued, our people are going to take action. Our elders, our youth, our children have been raised in this whole controversy,” he said.
Image: A Tsilhqot’in elder at a Fish Lake ceremony. Photo: Garth Lenz
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