A lengthy battle pitting the Tsilhqot’in Nation against Taseko Mines Ltd. reached the end of the legal road Thursday with the Supreme Court of Canada denying Taseko the right to appeal the federal government’s rejection of an open pit gold and copper mine in Tsilhqot’in traditional territory, 125 kilometres southwest of Williams Lake.

Celebrations of the victory are underway in Tsilhqot’in communities, but, among the leaders, there are suspicions that although the mine is legally dead, the body is still twitching.

Chief Joe Alphonse, Tsilhqot’in National Government chairman, has long experience of dealing with Taseko and he worries the company will try to keep the mine on its books.

“I never count these guys out. … These guys would try to pump oxygen into a dead horse,” he told The Narwhal.

There is no way the existing project can come to fruition but, provided Taseko can offer a glimmer of hope to investors, they are able to collect on the market, Alphonse said.

Xeni Gwet’in Chief Jimmy Lulua believes the decision means the end of the project as there is no possibility Taseko can now win federal approval — unless the company decides to start from scratch with a new application.

“That’s the big question, I guess,” he said.

Chief Jimmy Lulua of the Xeni Gwet’in was elected in a 2018 landslide victory and has played a major role in the band’s decades-long fight against Taseko Mines’ New Prosperity Mine at Fish Lake. Photo: Louis Bockner / The Narwhal

Taseko did not reply to a request for comment from The Narwhal.

The company holds mineral leases and tenure rights for gold and copper deposits in the area and, although the mine cannot be built without federal approval, on the last day of the BC Liberal government’s time in office, the province granted an exploration permit, which does not expire until July 2020. Extensive exploration can be carried out without federal approval.

Taseko’s website describes the tenure as “one of Canada’s largest copper-gold projects” containing 5.3 billion pounds of copper and 13.3 million ounces of gold.

The province, under the BC Liberals, also issued an environmental assessment certificate, and, in December, the Tsilhqot’in Nation and Taseko agreed to a one-year extension of that certificate — meaning it will expire early next year — as the province facilitates talks between the two sides.

Both sides have signed confidentiality agreements and it is not known whether the talks concern compensation but a news release from the province, issued when the talks were announced, says: “All parties involved in the process acknowledge Taseko’s commercial interests and the opposition of the Tsilhqot’in Nation to the project.”

The Tsilhqot’in Nation’s fight for control of its territory stretches over the last 30 years, culminating in a landmark 2014 Supreme Court decision that found the Tsilhqot’in hold Aboriginal title to almost 1,800 square kilometres of land — the first such decision in Canada to formally recognize Aboriginal title. But the proposed mine was just outside the title land, in an area where the Tsilhqot’in have the legal right to hunt, trap, fish and trade and that includes Dasiqox Nexwagwez?an Tribal Park, a name which means “there for us.”

In 2014 the Tsilhqot’in won a 25-year legal battle when the Supreme Court of Canada ruled the nation held Aboriginal title to almost 1,800 kilometres of land in central B.C. A larger area has been legally declared as a place where Tsilhqot’in have rights to hunt, trap, fish and trade. Taseko Mines’ New Prosperity mine project site is located within this larger rights area, near Fish Lake, and also within an area the Tsilhqot’in declared as a tribal park in 2014. Map: Dezine Studio / The Narwhal

Lawsuits, blockades and injunctions have marked the last 12 years as Taseko persisted, despite federal rejection of initial plans for the Prosperity Mine in 2010 and rejection of revamped plans for the New Prosperity Mine in 2014, when the government concluded it would cause irreversible environmental damage.

Undeterred, the company headed to court claiming the decision to deny an environmental certificate was based on faulty engineering and environmental studies.

The death of the mine is particularly sweet for residents of Xeni Gwet’in, in the heart of the Nemiah Valley, as the community is close to Teztan Biny (Fish Lake), a profoundly sacred area where traditional ceremonies are held. 

Taseko initially planned to drain the lake and use it as a tailings pond. Then, in the second attempt to win federal approval, the company proposed a tailings pond above the lake and a plan to recirculate the lake water — a concept a federal panel concluded would almost certainly contaminate the lake.

The decision is still sinking in for Lulua who wants to see a victory celebration for the communities next week and he is hoping the event can be held at Fish Lake, with appropriate social distancing.

“It would be the ideal place to give people a chance to share their words and share some songs as people have always done,” he said.

“So many people have been involved … The most important people are the elders who carry the stories and carry the legend and carry the direction on how this was going to roll out,” Lulua said.

Alphonse said it is time to reflect on the immense sacrifices of time and money made by Tsilhqot’in communities as they fought the mine.

“Now we call on TML (Taseko Mines Ltd.) to accept that this is the end of the road for them. It’s time to protect this sacred area for the survival of our way of life,” he said.

Lulua does not have an estimate of how much the lawsuits have cost, but said, even with help from supporters, it has been immense.

“With 30 years of litigation, that’s a lot of money — well into the millions,” he said.

The Tsilhqot’in Nation will now focus on building a regional economy that respects culture, spirituality and Aboriginal rights and title, Alphonse said.

‘This is not Canada’: inside the Tsilhqot’in Nation’s battle against Taseko Mines

“B.C. should finally recognize the importance of this area to the Tsilhqot’in and support the Dasiqox Nexwagwez?an. The Nation should never have to face the burden of an industrial threat to this sacred area ever again,” he said.

As the dust settles, Alphonse would also like the province to take a close look at its role in the drawn-out conflict.

The province could have stopped the project by withdrawing the mine’s certificates but, even when the NDP came to power, no action was taken, said Alphonse, who speculates the hesitation was due to concerns that the company could launch a lawsuit.

It is ironic that Taseko challenged the legitimacy of the federal environmental review process, when, from the Tsilhqot’in point of view, it was the provincial process that was at fault, Alphonse said.

“It was a rubber stamp process for industry,” he said.

The certificate issued by the B.C. Environmental Assessment Office kept the project alive, despite the lack of federal approval, and resulted in the company winning a court challenge giving the go-ahead for exploration work.

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The Taseko Mines saga to construct the New Prosperity gold and copper mine has likely, finally, come to an end with a Supreme Court of Canada decision Thursday to reject a company appeal.

The 12-year effort to construct an open-pit mine began with a proposal that involved turning Fish Lake — a place sacred to the Tsilhqot’in Nation — into a tailings pond. That proposal was rejected by a federal review panel, but approved by the province of B.C. The company then made revisions to the project design to avoid draining Fish Lake, dubbing it the ‘New’ Prosperity Mine, in 2011.

The project has been declared dead and then alive again several times over but the Supreme Court decision may signal the final nail in the mine’s coffin.

Here’s a timeline of events leading up to Thursday’s legal ruling.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Editor’s note: On Thursday, May 14, 2020 the Supreme Court of Canada rejected an appeal by Taseko Mines in a decision many say is the end of the New Prosperity mine.

It’s early morning, the loons are calling into the silence of the Nemiah Valley and the glacial blue waters of Chilko Lake are cold. Very cold.

The brand-new, 21-foot Highfield boat, bought by Xeni Gwet’in First Nation to enforce Tsilhqot’in laws on Chilko Lake, docks at the pebble beach on a small island and Chief Jimmy Lulua dives in.

Where the road through the Nemiah Valley in Tsilhqot’in territory ends, Chilko Lake begins. The mountains that rise from its shores offer a stark contrast to the open landscape of the Xeni Gwet’in traditional territory. Photo: Louis Bockner / The Narwhal

A quick dry-off and Lulua is ready to give a history lesson.

“We have always owned this land. Everywhere you look belongs to us. The land is who we are as Tsilhqot’in people. We say we are people of the river, people of the blue water,” he said.

“This is not B.C., this is not Canada. The jurisdiction is ours,” he said.

Grass glows in a Nemiah Valley field backlit by the rising sun. Photo: Louis Bockner / The Narwhal

Chief Jimmy Lulua of the Xeni Gwet’in was elected in a 2018 landslide victory and is continuing the band’s decades-long fight against Taseko Mines’ proposed New Prosperity Mine at Fish Lake. Photo: Louis Bockner / The Narwhal

Neither is it the Wild West, Lulua emphasized and, Tsilhqot’in communities are working quickly to figure out how to control activities in a vast territory that, for the first time in Canadian history, has been legally acknowledged as belonging to Indigenous people who have used the land for thousands of years.

In a precedent-setting 2014 decision, the Supreme Court of Canada unanimously ruled that the Tsilhqot’in Nation held Aboriginal title to almost 1,800 kilometres of land in central B.C., southwest of Williams Lake. The title land covers the Nemiah Valley and stretches north into the Brittany Triangle, along the Chilko River and part of Chilko Lake. That means the Tsilhqot’in Nation, made up of six communities including Xeni Gwet’in, has the right to exclusive use and control of the land.

In 2014 the Tsilhqot’in won a 25-year legal battle when the Supreme Court of Canada ruled the nation held Aboriginal title to almost 1,800 kilometres of land in central B.C. A larger area has been legally declared as a place where Tsilqot’in have rights to hunt, trap, fish and trade. Taseko Mines’ proposed New Prosperity mine is within this larger rights area, and also within an area the Tsilqot’in delcared as a tribal park in 2014. Map: Dezine Studio / The Narwhal

A larger area claimed by the First Nation, including Dasiqox Tribal Park, has been legally declared as Tsilhqot’in rights land, giving the right to hunt, trap, fish and trade. But, it remains a grey area where rules can be unclear.

The rights land includes Fish Lake, known as Teztan Biny, an area of profound cultural and spiritual significance, and ground zero for an almost 30-year fight against Taseko Mines Ltd. That fight is reigniting as the mining company pushes to conduct extensive explorations while the Tsilhqot’in Nation remains adamant that Taseko equipment will not be allowed into the territory.

“Fish Lake is our most sacred area and it’s a burial ground. It’s our highest level of church in non-native terms,” Lulua said.

“What would happen if I went to Williams Lake and said I need to look through those graves because there’s probably jewelry or something there and I want to make money?”

Teztan Biny, or Fish Lake, located high in the Chilcotin Plateau near the Nemiah Valley, has been at the epicentre of a standoff between the Tsilhqot’in First Nation and Taseko Mines for almost three decades. Despite two rejections by the federal government the company continues to attempt to push forward with exploratory drilling around the lake. Photo: Jeffrey Gibbs / Tsilhqot’in national government

Taseko’s plans to build the New Prosperity mine to access a large copper and gold deposit has twice been rejected by the federal government, but — on Christy Clark’s last day in office — when Tsilhqot’in communities were on wildfire evacuation, the province granted an exploration permit to the company.

That permit, upheld by the courts, gives Taseko the go-ahead to build 76 kilometres of roads and trails, 122 geotechnical drill sites, 367 trench or pit tests, 20 kilometres of seismic lines and a 50-person work camp. It expires July 2020, but Taseko could apply for an extension.

The Tsilhqot’in Nation was caught in the crossfire as Clark left the NDP with a grenade, said Chief Joe Alphonse, Tsilhqot’in national government chairman.

Chief Joe Alphonse of the Tl’etinqox Nation stands outside the band office in Anaham, B.C. Alphonse has been outspoken in his criticism of the Taseko proposal to build New Prosperity Mine at Teztan Biny or Fish Lake. Photo: Louis Bockner / The Narwhal

“They were doing a little favour for their friends on their last day in office. That’s corruption,” he said.

The bottom line is the mine cannot be built without federal approval and Tsilhqot’in people are adamant the exploration is not going to happen, Alphonse said.

‘Companies have to adapt’

Tsilhqot’in are not opposed to development, provided it is the right project, in the right place, with consultation from the get-go and fair profit-sharing, Alphonse said, emphasizing that Taseko has not met any of the criteria.

“Societies and companies have to adapt and, with our title case, companies have to learn to work in partnership with First Nations people. Ten years from now, it’s the companies that have done so that are going to be excelling,” he said.

Some mining companies are learning to work with the new reality, agreed Chief Russell Myers Ross, Tsilhqot’in national government vice-chairman.

“But, for whatever reasons, this company has decided to ignore all ethical principles.”

Chief Russell Myers Ross of the Yunesit’in band — one of the Tsilhqot’in bands strongly opposed to the New Prosperity Mine proposal at Fish Lake — sits outside his government’s band office on the Stone Reserve, 100 kilometres west of Williams Lake. Photo: Louis Bockner / The Narwhal

The legal battle against Taseko, which has cost the First Nation millions of dollars and absorbed infinite time and energy, is one reason Tsilhqot’in leaders hope to eventually wrap the entire 4,400 square kilometres into declared title land.

“There’s no place like this,” said Lulua, gesturing at the snow-patched Coast Mountains framing the lake.

“And there’s no one that can manage this area like we can. We will definitely go for more. We are not stopping until we have 100 per cent of Tsilhqot’in territory. Our people are pretty persistent.”

Both sides are now waiting for a B.C. Supreme Court decision, expected in early September, on competing injunction applications.

“Earth is the one that’s going to save us, not Safeway.”

The applications were filed last month after Taseko workers were turned back by a Tsilhqot’in roadblock. The company is applying to prohibit the Tsilhqot’in from interfering with its exploratory drilling program, while the Tsilhqot’in national government is applying for an injunction to stop the exploration program until there is a full trial of the claim that the drilling program is an unjustified infringement of proven Aboriginal rights.

Opposition to Taseko is almost universal around the remote, off-grid Nemiah Valley. It is a community where households use solar power or generators and most residents have no wish to see power line construction or huge trucks tearing up roads where children ride horses and play and herds of horses are often found grazing along the ditches.

Outside the band office in Xeni Gwet’in, Gilbert Solomon and Alex Lulua, both residential school survivors, have little time for Taseko or any company that wants to ride roughshod over Indigenous land rights.

“If they go in there, there will be big, mucho karma. The mountain will come down,” Solomon predicted, semi-joking.

Alex Lulua (left) and Gilbert Solomon, two Xeni Gwet’in band members, stand outside the Nemiah Valley gas station. They, like almost all of the valley’s residents, are strongly opposed to Taseko’s proposed New Prosperity Mine. Photo: Louis Bockner / The Narwhal

“These people don’t know how to play nice. That’s why we don’t play with them. They are saying there will be benefits? Huh, we don’t want your stupid money. … The material world is not good. Earth is the one that’s going to save us, not Safeway. This is our Safeway,” said Solomon, gesturing at the surrounding meadows and mountains.

Alex Lulua was among those who took part in the latest blockade and is willing to stand in opposition for as long as it takes.

“We never gave up the land or ceded it. They are the greedy ones. They just want to make money. They have no respect for burial sites,” he said.

“The only good thing that would come out of a mine is that they would give us a handful of the dirtiest work. All the good work would go to people with degrees. The land is going to be lost forever and then they will leave. Look at Mount Polley.”

On August 4, 2014, a tailings pond full of copper and gold mining waste breached at the Mount Polley mine, spilling an estimated 25 billion litres of contaminated materials into Polley Lake, Hazeltine Creek and Quesnel Lake, a source of drinking water and major spawning grounds for sockeye salmon. No fines have been levied and no charges have been laid five years after the disaster.

Concern for the land and animals is echoed by Doris William, 77, who now lives in a small house in Xeni Gwet’in, but who grew up at Fish Lake living off the land.

Doris William, an elder of the Xeni Gwet’in band, lived off the land near Teztan Biny or Fish Lake between 1948 and 1972. Photo: Louis Bockner / The Narwhal

“I don’t want them to spoil the land and poison the river, but it’s hard to tell if it can be stopped. They keep coming back,” she said with a hint of resignation.

Further down the gravel road, which alternates between dust and puddles of uncertain depth, a handful of Xeni Gwet’in cowboys are roping and branding calves before heading out to inspect the growing population of wild horses with the aim of culling the infirm and identifying promising youngsters.

As the branding iron is heated in the fire and anxious calves are wrestled to the ground, Roger William, Xeni Gwet’in chief during the rights and title case, reflected on how Taseko wants to change life in the Nemiah Valley.

Mike Hawkridge, Emery Phillips and James Lulua tag and brand a calf in a pen on the outskirts of the Nemiah Valley. Photo: Louis Bockner / The Narwhal

‘You can’t eat gold’

Taseko cannot drill without impacting Indigenous rights, William said.

“It’s not a good place for a mine. They are just messing with the place. They will open the roads and then say we can’t hunt or fish out there. If they approve it, the place will be contaminated for how long? And the taxpayer will be paying,” he said.

Former Xeni Gwet’in chief Roger William photographed at a cattle pen near the entrance to the Nemiah Valley. Photo: Louis Bockner / The Narwhal

Emery Phillips, a veteran of a previous roadblock, cannot understand why Taseko keeps pushing to tear up the ground when, without federal approval, the mine cannot be built.

“You can’t eat gold and it can’t go ahead. It’s all greed. The investors want their money,” he said, breaking off to rope another calf.

Emery Phillips, a cowboy from the Nemiah Valley, takes a break before branding calves. Photo: Louis Bockner / The Narwhal

The modern day history of activism in Xeni Gwet’in goes back to 1989 when the Nemiah Declaration was first adopted, setting out firm rules for how the community saw its future ⁠— no mining or mining exploration, no commercial road building, no flooding or dam building.

And the final sentence: “We are prepared to enforce and defend our Aboriginal rights in any way we are able.”

The Nemiah Declaration was the basis for two decades of litigation, culminating in the successful ruling in the rights and title case and, in 2015, the Tsilhqot’in Nation enacted the Declaration as its first law.

Annie Williams, former chief of the Xeni Gwet’in band, holds the Nemiah Declaration of 1989. She, along with elders, lawyers and others, was instrumental in formalizing the document, which helped lead to the Tsilhqot’in’s precedent-setting 2014 victory in the Supreme Court decision that gave them rights and title to much of their traditional lands. Photo: Louis Bockner / The Narwhal

Annie Williams was Xeni Gwet’in chief when the idea of the declaration was first raised at a general assembly.

“We could see the clearcuts encroaching. At first, all we were trying to do was stop the logging that was coming up the road,” she said.

The clearcuts were an affront to people who use every part of trees harvested and take pride in leaving the area as if it had never been used, Williams said.

“Our elders always say we do not own any land, we look after the land,” she said.

Discussions with the community and elders produced the declaration, which was first written in Tsilhqot’in and then in English.

“Our elders said at the time, this is not something for us today, we need to find a way to the future,” Williams said.

Mine twice rejected by federal government

Taseko’s plan for an open-pit copper and gold mine was twice rejected by the federal government, initially after a scathing Canadian Environmental Assessment Agency panel report concluded that the plan to use Fish Lake as a tailings pond would cause extensive damage to the environment and Indigenous rights.

Taseko returned with a second application that included an untested plan to cut off the water source to Fish Lake and recirculate water.

“It was a grand plan that tried to sway the powers-that-be, but that’s no way to have a lake operate. It would be nothing but a large aquarium,” said Richard Holmes, a biologist and environmental consultant who works with the Tsilhqot’in national government and Xeni Gwet’in.

Fish Lake has excellent rainbow trout used to stock other lakes and, in addition to the eyebrow-raising plan for the lake, extensive damage was done by Taseko during its exploration nine years ago when all the timber was removed, affecting drainage, Holmes said.

Once again, the panel concluded Taseko’s plan would risk unmitigable environmental damage, but before the Canadian Environmental Assessment Agency ruling, the former provincial Liberal government jumped in and gave their stamp of approval.

Pre-dawn in the Nemiah Valley where expansive ranchlands and majestic mountains meet. Photo: Louis Bockner / The Narwhal

In 2010 the B.C. Environmental Assessment Office handed Taseko a certificate which gave the company five years to start work. The certificate was renewed in 2015, but expires Jan. 14, 2020, unless there has been a substantial start. A spokesman for the Ministry of Energy, Mines and Petroleum Resources said that, if the certificate expires, the company will have to start from scratch with the Environmental Assessment Office working with the proponent to determine what parts of the expired certificate are still relevant.

Bizarrely, the exploration permit is not tied to the expiry of the Environmental Assessment Certificate.

Taseko Mines Ltd. contributed $137,450 to the B.C. Liberals between 2008 and 2017, while CEO Russell Hallbauer donated more than $96,000 and company chair Ronald Thiessen donated more than $64,000. 

“Line their pockets and then they get protected. Why spend all this money on title and rights when you can just send money to politicians?” Jimmy Lulua asked.

Political donations by unions and corporations were banned in B.C. in 2017, after the NDP took power. Donations from individuals are also now limited to $1,200 per year. 

Alphonse said the Tsilhqot’in have done the research and offered the province an escape route from the exploration permit.

Fish Lake is archeologically rich and the Mineral Tenure Act allows a permit to be withdrawn because of high archaeological potential, Alphonse said.

“If they withdraw the permit based on heritage and spiritual grounds, there is no way the company can sue them, by law. So why are they not doing it?” Alphonse asked.

A ministry spokesman said special archaeological significance was considered before the exploration permit was approved and Taseko must meet conditions to protect archaeological resources and “mitigate impacts on cultural heritage resources” including hiring a “qualified cultural heritage monitor” to do an assessment before the ground is dug up.

But in an apparent inherent contradiction in B.C.’s mining legislation, although the minister has the power to protect the area under the Mineral Tenure Act “as a mineral tenure holder, Taseko is entitled to undertake exploratory work.”

To Tsilhqot’in chiefs, it is another indication that the province is failing to act.

After winning the title and rights case, it is galling that Tsilhqot’in are being forced to risk jail by taking part in road blocks, Myers Ross said.

“I think it’s hard to believe there are not levers in government so that, if they see there’s a conflict, they could intervene. For First Nations, it seems there is still a political gap when it comes to involvement and protection of our rights,” he said.

‘John Horgan has failed to turn up’

Prime Minister Justin Trudeau visited the territory last year to apologize for the unjustified hanging of Tsilhqot’in chiefs in 1864 and the federal government has stood firm on refusing to approve the mine, but B.C. Premier John Horgan has not visited the territory, even though he has the power to step in and stop an escalating situation that is likely to result in a head-on collision, Lulua said.

“John Horgan has failed to turn up at a time when our back is against the wall. He has the power to end this at the stroke of a pen, to avoid all the conflict and to (ensure) the safety of Taseko Mines and the safety of our people, but he’s sitting on the sidelines hoping it’s going to blow over,” he said.

Horgan was not available to speak on the issue.

Children from the Nemiah Valley summer school go for a swim in Konni Lake in the heart of the valley. Photo: Louis Bockner / The Narwhal

Myers Ross understands the province is in a tough position, especially as the permit is a statutory decision, meaning it is in the hands of a civil servant rather than politicians.

“(Horgan) is being told it’s a $1-billion liability, so it’s hanging over their head and they are trying to protect the public funds and not pay one cent to the company,” he said.

“But, for a company like this, that will never have our respect, it’s probably better that there should be some level of a buyout and that land should be secured for us.”

Standing on a hill, overlooking Chilko Lake, behind her Nemiah Valley home, Marilyn Baptiste wonders why Tsilhqot’in are being forced to continue fighting.

“It’s ludicrous, it’s just stupid. The company is on welfare anyway,” she said, echoing a broadly held belief that Taseko is looking to recoup money by suing if the licence is pulled and that the project is being kept on the books to keep shareholders happy.

The company’s website states that “development of this large-scale deposit would be a major step towards transforming Taseko into a strongly positioned mid-tier mining company.”

“All they have to do is … continue to raise those shares so they can continue to destroy our lands and our water,” said Baptiste, a former Xeni Gwet’in chief who was given the prestigious Goldman Environmental Award, one of the world’s largest awards for environmental activism, for her role in twice defeating the mine proposal.

Baptiste prepared submissions for the Canadian Environmental Assessment Agency in 2010 and in 2011 led a one-woman blockade to stop crews accessing the mine site. Now she fears more blockades will be needed.

Marilyn Baptiste stands on the top of Bald Mountain in the centre of the Nemiah Valley. Baptiste, who served as Xeni Gwet’in chief from 2008 to 2013, won the Goldman Environmental Prize for her work defending Teztan Biny, or Fish Lake, from Taseko Mines proposed gold and copper mine. Photo: Louis Bockner / The Narwhal

The smell of sage is strong on the wind from the valley and Baptiste wonders whether the spirits of ancestors and Mother Earth have already intervened with unexpected floods that washed out one of the main logging roads and caused a landslide on the main Fish Lake access road just as Taseko crews were preparing to enter the area.

“They are amazing washouts ⁠— I love them,” said Baptiste.

“Now you know why we fight so hard. It’s the land and the water,” she said, gazing at the expanse of pristine lakes, mountains and forests that, unlike surrounding areas, have avoided clearcuts because of the Nemiah Declaration.

The spiritual aspect of protecting the land and ensuring the water remains clean for sockeye and chinook salmon is at the root of Tsilhqot’in beliefs, said Loretta Williams, a former Xeni Gwet’in councillor, who now works for Tsilhqot’in national government.

“Mining companies are getting away with murder. There is no trust after Mount Polley. One thing we are always concerned about is the water. We take our responsibility very seriously as caretakers of the (headwaters) of the Fraser River. Aquifers go through the Fish Lake area and anything you do affects the aquifers,” Williams said.

‘Dinosaur provincial mining laws’

A major problem is dinosaur provincial mining laws that have not been reformed to stop such travesties, Baptiste said.

“The Mining Act is from the beginning of time and the government is there for big industry, they are not protecting the land or protecting their constituents,” Baptiste said.

“You call this reconciliation?” she asked, predicting that, if the mine goes ahead, taxpayers will be left with huge bills for maintaining the road from Williams Lake to the mine and paying for a 125 kilometre transmission line.

“Look at who’s paying for Mount Polley. Not the company. It’s criminal,” she said.

Konni Lake stretches into the distance in the heart of the Nemiah Valley. Photo: Louis Bockner / The Narwhal

Jimmy Lulua does not disguise his contempt for the mining laws.

“The same laws that created Canada, that created B.C. and the gold rush are still here today. They have more power than a nation that has won title and rights. Why waste 29 years of legal battles and courts when you can simply get a mining permit that will give you more jurisdiction?” he asked.

“Mining laws have to be changed. It’s a new day and age.”

Consultations are underway on changes to the Mineral Tenure Act and a network of experts and environmental organizations is supporting Tsilhqot’in calls for reform.

Andrew Gage of West Coast Environmental Law Association said mining laws must be updated if B.C. wants to build a modern mining sector.

“B.C.’s gold rush-era mining laws, which give mining activity priority over virtually all other land uses, are out of touch with today’s realities,” he said.

Another source of Tsilhqot’in frustration is that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which could address some imbalances, has not yet been implemented.

The Tsilhqot’in Nation has submitted an urgent request for investigation to the United Nations special rapporteur on the rights of Indigenous peoples alleging an imminent violation of human rights and pointing out that the province has not implemented UNDRIP.

Jimmy Lulua believes the UN complaint will bring attention to what is happening in the Nemiah Valley.

“It’s more a shaming exercise. It educates the rest of the world on the holes in the B.C. system,” he said.

Ministry of Indigenous Relations and Reconciliation spokeswoman Sarah Plank said elements of UNDRIP have been incorporated in government programs and, this fall, B.C. will be the first province that enshrines UNDRIP into provincial law.

“The legislation will form the foundation for the province’s work on reconciliation, mandating government to bring provincial laws into harmony with the declaration over time,” Plank said in an email.

‘We are guardians of the land’

Following the Tsilhqot’in Nation’s monumental win of Aboriginal title, communities decided to reinforce traditional knowledge programs, double down on teaching the language to young people and emphasize ties to the land.

For people still recovering from residential schools and the ’60s scoop, the rights case was a boost and, now, increasing traditional knowledge is essential to facing future challenges, such as Taseko, Alphonse said.

“For a while, our people were lost, but our younger people are starting to turn more and more back to our old beliefs and our old systems. There has been a big awakening around that front and it’s important to continue to do what we can to protect those areas and protect our spirituality,” he said.

At the Yunesit’in hunting camp, the head of a deer is propped in the corner of the smokehouse while strips of deer jerky hang at the back and, outside, the ribs are slow-cooking over a fire, tended by teenagers and supervised by Merle Quilt.

“Some of them are naturals, some are a bit squeamish,” Quilt said as the uncooked meat was carved into pieces.

“It’s better than having their face buried in a device. They are learning native names for berries and trees and how to give thanks for meat and make sure there is no waste,” he said.

Winston Tallio, 17, believes learning about traditional values saved his life.

“If I didn’t connect with my culture I would have been dead at 15,” he said, noting he’d gotten into drugs.

The basis of Tsilhqot’in culture is protecting the land, Tallio said.

Winston Tallio, a youth from Anahim Lake, B.C., checks deer jerky in the smoking tent of the Yunesit’in traditional hunting camp. Tallio has returned to the land and the wisdom of elders in order to heal himself. Photo: Louis Bockner / The Narwhal

“That mountain has been here for millions of years and it will be there for millions of years. We are guardians of the land. We are not supposed to own it,” he said.

“Protect the land. It can save you or it can kill you, depending on how you treat it.”

And that protection ethos now comes with political clout that is recognized as a beacon of hope in Indigenous communities around the world, said Loretta Williams.

“It’s a battle that we carried on since 1864 when our six chiefs were hung. Since smallpox, since residential school,” she said.

“We are a healing nation. Our battles aren’t with bows and arrows any more. They are on paper, in court rooms with carefully thought out words. Our goal is to create a better future for our people, so we will press on until we achieve that. It’s not over yet.”

Taseko did not respond to calls and emails from The Narwhal.

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Campfires burned on both sides of the road, as drummers and spiritual leaders supported Tsilhqot’in Nation members on a roadblock as contractors for Taseko Mines Ltd. made an unsuccessful push Tuesday to bring heavy equipment into an area considered to have profound cultural and spiritual significance.

The latest salvo in a decades-old battle between Taseko and the Tsilhqot’in started with a handshake. After five minutes of polite conversation and explanations of why the Tsilhqot’in people will never allow the proposed New Prosperity Mine to go ahead, Taseko retreated.

But no one believes this is the end of the company’s bid to build roads and engage in exploratory drilling for an open-pit gold and copper mine 125 kilometres southwest of William’s Lake in the nation’s traditional territory.

“They’re probably going to seek an injunction against us, so they can go in,” Chief Jimmy Lulua of Xeni Gwet’in First Nations Government told The Narwhal.

That will not change the nation’s opposition to the project and the roadblock will stay in place, ready for the next move, Lulua said.

“We have morals, we have ethics, we have a code and a mandate to follow to protect our sacred ground … We have our traditional laws to protect the water and the fish and the salmon and we will stand up against anyone,” he said.

Chief Joe Alphonse, Tsilhqot’in National Government tribal chairman, said the roadblock was necessary to keep the peace and ensure drilling and road-building equipment did not enter the area as feelings are running high and the nation wants to ensure everyone’s safety.

“The project is dead. It cannot be built. Yet the company wants to come in and tear up a place that is as sacred to us as a church,” Alphonse said, adding he is deeply concerned about the escalating conflict.

Open-pit gold and copper mine rejected twice by feds

The area where Taseko wants to conduct exploratory drilling includes the historic Dasiqox Tribal Park and is adjacent to the only area in Canada where aboriginal rights and title have been recognized by the Supreme Court of Canada.

The dispute over the proposed $1.5-billion mine has bounced in and out of the courts for two years since Taseko’s application — which included a plan to drain Fish Lake, known as Teztan Biny — was turned down by the federal government because of the serious effects the mine would have on the environment and Tsilhqot’in culture and rights.

A timeline of the never-ending saga that is the Taseko New Prosperity mine

Undeterred, Taseko returned with a second proposal, also rejected by the federal government. The mine cannot be built without federal approval.

But, in a bizarre twist, in the dying days of the former Christy Clark-led Liberal government, while the Tsilhqot’in people were threatened by wildfires, B.C. granted the company an exploration permit that would allow construction of 76 kilometres of roads and trails, 122 geotechnical drill sites, 367 trench or pit tests, 20 kilometres of seismic lines and a 50-person work camp.

That permit has not been withdrawn despite requests from the Tsilhqot’in asking the provincial government to uphold the United Nations Declaration on the Rights of Indigenous Peoples.

“We are appealing to them to do the right thing. They have the power and they have the tools, but they appear unwilling to show any leadership,” Lulua said.

The provincial permit was upheld by the B.C. Court of Appeal. Last month, the Supreme Court of Canada denied leave to appeal, clearing the way for Taseko to give notice it was moving in to start the exploration.

“They know the mine is not going to go ahead. All they are looking to do is sue somebody — either our nation or B.C. — to try and recover some of the money they have lost,” charged Lulua, who believes the threat of a lawsuit prevents the province from withdrawing the permit.

“The last time we met with them, they had seven lawyers sitting behind them and they kept looking over their shoulder and they would give them a nod, but at the end of the day they have to make those tough decisions,” he said.

Members of the Tsilhqot’in Nation at Fish Lake, where a new mine has been proposed by Taseko Mines. Photo: Tsilhqot’in Nation

Under B.C.’s Mineral Tenure Act, the province can restrict mineral exploration if the area contains a cultural heritage resource and, in those cases, the law prohibits compensation for lost mineral use.

However, it is unclear whether that would apply to areas where an exploration permit has already been granted and the spectre of the Carrier Lumber case is believed to be one of the considerations

In the 1990s the former NDP government was forced to pay the Carrier Lumber Company of Prince George more than $30 million and hand over 1.5-million cubic metres of wood without stumpage fees after cancelling the company’s timber rights following opposition from First Nations.

In March, in an emailed statement to The Narwhal, the Ministry of Energy, Mines and Petroleum Resources described the dispute as a “longstanding and complex matter that we inherited.”

The province respects the court’s decision that allows Taseko to undertake exploratory work within their mineral lease, but that does not authorize construction of the mine, the statement said.

“Taseko does not have a Canadian Environmental Assessment Agency certificate and the project cannot be built without this federal approval.”

Lulua cannot see the logic.

“You would think these days were behind us. Canada Day just went by, look at the exoneration of our war chiefs by B.C. and Canada and we have had (Prime Minister Justin) Trudeau here in the valley and then they come up with this sort of thing. It just doesn’t make sense,” he said.

Chief Russell Myers Ross, Tsilhqot’in National Government vice-chair, said in a news release that B.C. needs to understand that the Taseko mines proposal will never have the consent of the Tsilhqot’in Nation.

“When the Tsilhqot’in must defend itself from invaders, it brings us back more than 150 years and makes us feel that nothing has changed with regards to Crown and Indigenous relations. The words of exoneration made towards our war leaders by the Crown was meant to recognize wrongs and prevent future conflict,” he said.

Equally inexplicable is the idea of exposing strong sockeye salmon runs in the Chilcotin and Taseko rivers to a possible spill or pollution from mining exploration work when other Fraser River sockeye runs are in deep trouble, Lulua said.

“We have been told that you can tell the health of the people by looking at their rivers and our rivers you can jump in and drink. You can’t do that in many places in the world,” he said.

Taseko did not return calls from The Narwhal.

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A decade-long battle to build a $1.5 billion gold and copper mine in the traditional territory of the Tsilhqot’in First Nation is back in a federal court — again.

The legal twists and turns of this project, first proposed back in 2008, are many and hard to keep track of.

Between defamation lawsuits, rejected project proposals and lost judicial reviews it’s near impossible to stay on top of this controversial mining proposal, although that’s exactly what the Tsilhqot’in First Nation has had to do at every step of the way.

The Narwhal created a handy-dandy timeline to help layout the flow of legal proceedings that continue to this day.

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The Tsilhqot’in Nation is urgently searching for ways to block an exploratory drilling program for the New Prosperity mine, a controversial gold and copper project that was formally rejected by the federal government on two separate occasions.

An injunction preventing the exploratory drilling — permitted by the outgoing BC Liberal government on its final day in power — was lifted Friday after B.C. Supreme Court Justice Ward K. Branch dismissed the Tsilhqot’in Nation’s legal bid to stop exploration in the remote area 125 kilometres southwest of Williams Lake.

Drilling equipment and road building machinery can now move into sacred Tsilhqot’in territory despite the project’s lack of federal environmental permits.

Earlier this month the Tsilhqot’in called on the B.C. government to quash provincial permits for Taseko’s exploratory drilling program.

“It is one of the most sacred places we have and some of our most significant archaeological finds come out of that area so having them clear trees, build highways and roads will destroy centuries of culture,” Chief Joe Alphonse, Tsilhqot’in National Government tribal chairman, told The Narwhal.

Exploratory permits allow for 122 drill sites in tribal park

The exploration — which includes 76 kilometres of roads and trails, 122 geotechnical drill sites, 367 trench or pit tests, 20 kilometres of seismic lines and a 50-person work camp — would take place in traditional Tsilhqot’in territory, adjacent to the only area in Canada where Aboriginal rights and title has been recognized by the Supreme Court of Canada.

The decade-long legal battle over Taseko’s plans for the open-pit gold and copper mine has centred around Fish Lake, known by the Tsilhqot’in as Teztan Biny, and Nabas, an area of cultural and spiritual significance, which is where the exploration work is planned.

It is also the site of the historic Dasiqox Tribal Park, a 3000 square kilometre patch of land located adjacent to the nation’s title lands, where the Supreme Court ruled the Tsilhqot’in have constitutionally protected rights to hunt, fish and trap.

Following the B.C. Supreme Court’s decision to allow preliminary mining activity in the area, a the Tsilhqot’in launched a petition to protect the area.

Efforts to establish Aboriginal rights, protect environment “long and difficult”: Judge

The Tsilhqot’in alleged the B.C. government had breached its duty to consult, but Justice Branch found that the key question was not the degree of consultation, but the outcome, and quoted a previous decision that said “while reconciliation may not be achieved because of an honest disagreement over whether the project should proceed, that does not mean the process was flawed.”

Justice Branch acknowledged the project represents a collision course of conservation, Indigenous rights and natural resource development.

“The history of the simultaneous efforts to establish Aboriginal rights, protect the environment and develop what may be one of the world’s largest gold deposits, has been long and difficult,” he wrote in his decision.

“Based on the evidence presented to me, all parties and governments appear to be acting in good faith to advance what they each perceive to be the proper use for the land,” he wrote.

“But, unfortunately, good faith cannot always prevent disagreement. That is when courts must step in to help the parties move forward.”

For the Tsilhqot’in the New Prosperity mine appears a battle that never ends — despite both the provincial and federal governments agreeing the mine would have significant adverse environmental effects on culture, historical sites, fish habitat and moose and grizzly bear populations.

Taseko is also fighting the two federal rejections of the project in Federal Court of Appeal and appears to pin company hopes on a reversal.

In a letter, written in March last year to the province and Tsilhqot’in, Taseko said the federal rejection should have no bearing on the provincial exploration permit.

“The present status of the federal environmental assessment does not, in any way, prohibit such information gathering,” the letter said.

Taseko did not return calls from The Narwhal.

Exploratory work may boost shareholder interest

Chief Jimmy Lulua of the Xeni Gwet’in First Nations Government said people have not endured 25 years of panel hearings and court cases simply to have Taseko and B.C. run roughshod over proven Aboriginal rights.

“We’re past the stage of consultation,” he said.

“The drilling program stands to displace our families, threaten our sacred sites and interrupt our ceremonies and teaching opportunities for our youth. Teztan Biny and Nabas are a no-go zone for Taseko Mines.”

On its website, Taseko acknowledges the fate of the project is uncertain: “In light of the federal government’s decision not to issue the authorizations necessary for the project to proceed, and the related ongoing legal proceedings initiated by Taseko, there is considerable uncertainty with respect to successful permitting of the project.”

However the company has pushed hard for the right to conduct exploratory drilling and road building.

Alphonse said he believes the company is pushing to conduct the exploration work in an effort to pull in investors and make shareholders believe there is still a chance the project will go ahead.

“It’s a senseless project. The best possible scenario on this project will not overturn the federal decision. The federal government has rejected Taseko’s plan twice now making it virtually impossible to ever have a project there,” he said.

The provincial exploration permit was issued on former premier Christy Clark’s last official day in office and at the height of the wildfires raging in Tsilhqot’in territory.

Alphonse — who, along with other chiefs, is hoping to meet with government representatives this week — said the NDP should now do the honourable thing and stop the permit in its tracks.

The Ministry of Energy, Mines and Petroleum Resources told The Narwhal in an e-mailed statement that Taseko “has applied for an Occupant Licence To Cut, which is necessary to undertake the scope of the work that the Notice of Work granted. That application is currently with the Statutory Decision Maker for consideration.”

While stopping the exploration work is the priority, Alphonse also dreams of holding the former BC Liberal government accountable for making the last-gasp decision that has such long-term ramifications.

“It was so very irresponsible. We will be exploring that. We need to remind people how that permit came to be,” Alphonse said.

Taseko Mines donated $137,450 to the BC Liberals between 2008 and 2017. In addition, CEO Russell Hallbauer donated more than $96,000 and company chairman Ronald Thiessen donated more than $64,000.

Meanwhile, Tsilhqot’in leaders will be holding meetings with the membership to look at ways to oppose the exploration program.

Alphonse said it’s a possibility the Tsilhqot’in might appeal the ruling, despite the additional cost of returning to court.

You can’t put a price on your belief system. You can’t put a price on your religion — that is what keeps you balanced, ” he said.

*Update Tuesday, August 28 9:53pm pst. This article was updated to add comment provided by the Ministry of Energy, Mines and Petroleum Resources.

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In the dying days of the former BC Liberal government, a poison pill was left for the incoming New Democrats in the shape of an exploration permit for a highly contentious mine that had already been rejected by the federal government.

Following the election, Tsilhqot’in Nation hopes were high that, after spending more than a decade battling Taseko Mines Ltd., the new government would withdraw the permit. Instead, the NDP government is watching from the sidelines as lengthy and expensive legal battles continue.

Mine permits issued on last day of Christy Clark government

The exploration permit was issued on former premier Christy Clark’s last official day in office and at the height of wildfires raging in Tsilhqot’in territory just over one year ago.

The company, Taseko Mines, donated $137,450 to the BC Liberals (the only party it has supported financially) between 2008 and 2017. The company’s CEO and director, Russell Hallbauer, donated more than $96,000 of that under his name. Company chairman, Ronald Thiessen, donated more than $64,000.

At that time, the BC Liberal government, faced with outrage at the tone-deaf move, said in a written statement that the decision was not political and was made by a “statutory decision maker, who, in this case, was a senior permitting inspector located in Kamloops.”

That seemed to indicate the decision could be reversed, but nothing has changed and, as the Tsilhqot’in community continues to spend scant funds on court cases, members are baffled that the government has not withdrawn the exploration permit, Chief Joe Alphonse, Tsilhqot’in National Government Tribal Chairman, told The Narwhal.

It was a low blow and it is now time for the NDP to make it right, Alphonse said.

“It was very, very dirty politics and we got caught in the crossfire,” he said.

“The Tsilhqot’in calls on the current B.C. government to step up and implement the UN Declaration on the Rights of Indigenous Peoples, along with the calls to action of the Truth and Reconciliation Commission, as they have long committed to do,” he said.

Mining plans clash with Indigenous tribal park

Taseko wants to construct 76 kilometres of new or modified trails, 122 drill holes, 367 test pits, 20 kilometres of seismic lines and build a 50-person work camp. The company contends the three-year exploration program is necessary to gather information for the proposed $1.3-billion New Prosperity mine 125 kilometres southwest of Williams Lake, even though the proposal cannot go ahead without federal approval.

The exploration would be close to Fish Lake, known by the Tsilhqot’in as Teztan Biny, a sacred site that has been the focus of the fight against Taseko’s plans for an open-pit copper-gold mine.

“That’s our church,” Alphonse said.

“It’s not about walls, it’s not about art. It’s where our spiritual leaders go to obtain their vision, their wisdom and that’s what they are planning to disrupt.”

Alphonse said he has talked one-on-one with Premier John Horgan about legalities and has been assured government is looking at options.

“We have said they must do more. Sooner or later they have to show some leadership and I think there’s enough evidence in court now that by pulling the pin on this company it would be difficult for (Taseko) to win a big, huge legal challenge,” he said.

Alphonse believes that the spectre of the Carrier Lumber case, which, in the 1990s cost the former NDP government millions of dollars, continues to haunt politicians.

The government was forced to pay the company more than $30 million and hand over 1.5 million cubic metres of wood without stumpage fees, after cancelling the company’s timber rights following logging opposition from First Nations.

If the government was sued by Taseko, the Tsilhqot’in Nation would be willing to step in and argue on the government’s behalf, said Alphonse.

“As Tsilhqot’in people we are the only Indigenous people in Canada — and in the world — that have actually proved they have aboriginal rights and title so the steps the company has to take anywhere in Canada are different from here in the Chilcotin. There should be a higher level of consultation and accommodation,” he said.

A 2014 landmark Supreme Court of Canada ruling found the Tsilhqot’in people had Aboriginal title to more than 1,700 square kilometres of their traditional territory.

The proposed exploration work is outside the area where Aboriginal title was granted, but is in traditional territory in the area where the Dasiqox Tribal Park is being created.

“Our vision for the land, one that we are creating with the Dasiqox Tribal Park does not include destabilizing an entire ecosystem,” Chief Russell Myers Ross, vice-chair of Tsilhqot’in National Government, said in a news release.

‘Potential for irreparable harm’: Judge

There are few answers from the provincial government and the Ministry of Energy, Mines and Petroleum Resources declined to comment because “this matter is before the courts.”

Neither is it clear whether the Ministry of Forests, Lands and Natural Resource Operations is willing to issue a cutting permit that would be needed in order for much of the work to proceed.

Calls to Taseko from The Narwhal were not returned, but the company website, while acknowledging “considerable uncertainty with respect to successful permitting of the project,” describes the New Prosperity mine as a project that has the potential to dramatically increase shareholder value and improve the economic well-being of local communities.

The Tsilhqot’in Nation was granted a temporary reprieve last month with a B.C. Supreme Court injunction preventing Taseko from starting exploration work until Sept. 10, or until Justice Ward Branch rules on a Tsilhqot’in challenge to the permit.

Branch said in his Oral Reasons for Judgment in granting the injunction that “there is potential for irreparable harm” if the exploration goes ahead.

“As a simple example, the program will involve the destruction of trees, which Taseko Mines Ltd. accepts will take many years to recover, even with an aggressive remediation program. Cultural practices will also be difficult to carry out during the construction period,” Branch said.

Although Taseko argued that delays would be costly, Branch pointed out that the minerals underground are not going anywhere and, even if the company gets the legal go-ahead, full exploration work cannot proceed until the province grants a cutting permit.

B.C. mining laws out-of-date

The timeline for the company is partially driven by the environmental assessment certificate granted by the former provincial Liberal government in 2010, meaning construction must substantially start by January 2020.

Which still leaves the overriding question why exploration is necessary when the mine cannot go ahead without federal approval and, as the project was rejected by the pro-industry Harper government because of environmental and cultural concerns, there is little likelihood it will be approved by the Trudeau Liberals, Alphonse said.

“This project is meaningless, but, as long as there’s a sliver of hope, the company will continue to draw in investment money,” he said.

Erica Stahl, staff lawyer at West Coast Environmental Law, said an additional problem facing the Tsilhqot’in and other First Nations is B.C.’s antiquated mining laws that give mineral claims precedence over every other land use.

Would-be miners can stake a claim to minerals in the ground and, with a ministry permit, start exploration without the consent of landowners.

“This is a live issue in B.C. right now because our mining laws are over 100 years old and were written in the context of the last gold rush — and that’s still the kind of mentality they facilitate,” Stahl said.

Unless the government amends the mining laws, it is likely that the question of how mining claims interact with aboriginal rights will have to be settled in the courts, especially as the government is committed to UNDRIP, which demands free, prior and informed consent from Indigenous communities before resource development, Stahl said.

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As pipeline politics dominate headlines, British Columbia is poised to overhaul the process that guides how major resource and development projects proceed.

The review now underway of the environmental assessment process has the potential to restore public confidence in the system that evaluates large developments — from open-pit coal mines to pipelines to hydro dams — by considering the combined effects of multiple projects in a single region and instituting other sweeping changes that critics say are long overdue.

“We had this ridiculous situation in northern B.C. where we had 18 LNG projects, five different pipelines and an oil export project all proposed at the same time here,” said Greg Knox, executive director of the SkeenaWild Conservation Trust.

“People were asking ‘can Kitimat handle these LNG facilities, plus [the] Enbridge [Northern Gateway pipeline], plus [the] Rio Tinto’ [Alcan aluminum smelter], and wondering how it would all impact the environment and people’s health.”

The projects would have affected local air quality at a time when the B.C. government had already granted a permit to the Rio Tinto Alcan smelter allowing the company to increase sulphur dioxide pollution in the Kitimat airshed by more than 50 per cent.

Under B.C.’s current regulations, each resource project is assessed separately, as though the others do not exist. There is no mechanism to study the cumulative impact of various projects on, for example, a single caribou herd, or on overall water or air quality in a community like Kitimat.

Concern about additional air pollution from LNG plants prompted the Kitimat community to ask the B.C. government to conduct a regional environmental assessment to address the combined impact of all the projects and figure out how to proceed with fewer ecological and community impacts.

“We had pipelines going everywhere when it would have made sense to have a pipeline corridor,” Knox said.

But the request was ignored, Knox said.

“They refused. They basically sent some form letter. They rejected doing a regional environmental assessment. It was a boilerplate response.”

The Elk Valley coal mines in southeastern B.C. are another case in point when it comes to the cumulative impacts of resource projects. The valley, which is part of one of North America’s most important wildlife corridors, is home to five operating coal mines.

More than 100 years of coal mining has polluted the Elk River with worrisome contaminants such as selenium, a heavy metal highly toxic to fish and birds. Yet each new mining proposal is examined as though it is the only project polluting the river.

B.C. Auditor General Carol Bellringer flagged the government’s failure to manage the cumulative impacts of the Elk Valley mines as a cause for concern, pointing to the environment ministry’s failure to address known environmental issues and the “lack of sufficient and effective regulatory oversight and action” that has allowed the degradation of water quality.

B.C. Environment Minister George Heyman has said the review of the environmental assessment process is designed to restore public confidence in the system.

But how far must the changes go to examine the impacts of a proposed project like a coal mine expansion in the context of other significant resource projects in the same watershed or airshed? Or to prevent projects staunchly opposed by First Nations from advancing through the system at considerable cost to taxpayers?

Decisions currently made in ‘black box’

West Coast Environmental Law lawyer Gavin Smith and other experts say the overhaul of B.C.’s environmental assessment regime must address the lack of a clear rationale behind government decisions to grant certificates to projects with grievous impacts on First Nations and the environment — projects such as the $10.7 billion Site C dam.

“What’s been happening is that the environmental assessment regime goes into a black box,” Smith told DeSmog Canada.

“All of this work on the assessment happens, and it goes to ministers and they just make a decision. Communities are left feeling like all the time and effort they’ve put into the process has been totally ignored. It’s not actually even clear on what basis the decision was made.”

The B.C. government issued an environmental assessment certificate for the Site C dam in 2014, even though First Nations are fighting the project in court and the dam will cause more ecological damage than any project ever examined in the history of Canada’s Environmental Assessment Act, according to more than 200 leading Canadian scholars.

Only three projects ever rejected in B.C.

No matter how environmentally egregious a project is, or how intense the opposition from First Nations and other local communities, when a major resource project exits B.C.’s current environmental assessment process it is almost certain to be stamped “approved.”

“Even projects which, according to federal law, have been found to have unjustifiable impacts on the environment and on Indigenous culture and governance have been approved through the provincial system,” Smith said.

“It’s a pretty strong indication that the system is built to facilitate getting to yes.”

Only three projects have ever been refused a B.C. environmental assessment certificate, according to an email from the provincial environment ministry.

The Ajax mine, a 1,700-hectare open-pit gold and copper mine proposed for the outskirts of Kamloops by Polish mining giant KGHM, is the only project to be rejected in the past seven years.

A proposed landfill for Metro Vancouver garbage, on the Ashcroft Ranch near Cache Creek, was turned down in 2011, while the Kemess North gold and copper mine north of Smithers was rejected in 2008 — but then approved last year.

Rejected projects often return

Smith said there must be mechanisms built into the revamped environmental assessment process to ensure rejected projects can’t simply be tweaked and re-tendered.

Lawyer Sean Nixon vividly remembers his reaction on the day he heard Taseko Mines had submitted a new plan to extract gold and copper from the area around Fish Lake in B.C.’s interior, a lake sacred to the Tsilhqot’in Nation.

“The first response was incredulity,” recalled Nixon, who had represented the Tsilhqot’in National Government several years earlier during the environmental assessment for Taseko’s project, dubbed the “Prosperity” mine.

The B.C. government granted Taseko a provincial environmental assessment certificate in 2010.

But Ottawa refused to issue a federal certificate, largely because the mine would drain Fish Lake — known as Teztan Biny to the Tsilhqot’in Nation — and turn part of it into a toxic tailings pond that would destroy rainbow trout habitat and wetlands.

That was supposed to be the end of the matter.

But then the project was back again. This time, when Nixon heard about it in 2011, it had a different name: Taseko called it the “New Prosperity” mine.

The project was virtually the same, with one major exception. The company said it would move the tailings pond upstream from Fish Lake — enough of a change to spark a second federal environmental assessment review, at an unknown cost to Canadian taxpayers.

In B.C., the process the company went through was a breeze by comparison. Taseko merely requested an amendment to its environmental assessment certificate, which was duly approved by the provincial government even though Taseko lacked a clear plan to keep tailings pond contaminants out of Fish Lake.

“The province didn’t need details about how the company planned to keep chemical contaminants from destroying the lake,” Nixon told DeSmog Canada. “The mining company said it would work out the details later. And B.C. accepted that claim at face value.”

As with the Prosperity mine, there’s nothing to stop the Ajax project from being re-submitted to the B.C. Environmental Assessment Office with modifications and a new name.

The KGHM website still lists Ajax as a project “under development,” and the company has said it is considering its options.

Early-planning phase would axe non-starter projects

Smith says the revamped system needs to include the ability for the B.C government to say “this project doesn’t stand a reasonable likelihood of success so we’re not wasting taxpayer money doing, for example, a third assessment on a project that’s already been rejected.”

Sustainability criteria — such as targets for maintaining air and water quality – need to be built into the law, and decision-makers need to justify their decisions based on these criteria, Smith said.

To deal with projects as controversial and destructive as the Site C dam or the New Prosperity mine, Smith said B.C.’s environmental assessment process needs to include an “early planning phase,” during which the views of First Nations and other local communities are taken into account well before the project advances through the system.

Perhaps the project is “a total non-starter from the get-go,” said Smith, in which case communities should be able to say “there’s no way this project is going to happen.”

In the case of Taseko, the former B.C. Liberal government approved exploration permits for the New Prosperity project last summer during its final days in office, while Tsilhqot’in members were under a wildfire evacuation notice, even though the federal government had also refused to grant the project an environmental assessment certificate the second time around.

The company subsequently took the federal government to court and lost in December.

Yet Taseko’s website still lists the New Prosperity mine as one of the company’s five properties, while noting “there is considerable uncertainty with respect to successful permitting of the project.”

Smith said he would be surprised if the company submitted a third iteration of the project to the B.C. Environmental Assessment Office. But until B.C.’s environmental assessment process changes, he said, “on paper, Taseko’s New Prosperity project still exists and is still a risk.”

A 12-member advisory committee, led by ecologist Bruce Fraser and Lydia Hwitsum, former Cowichan Tribes chief and former chair of the First Nations Health Council, is due to release a discussion paper on the review process in May, including feedback from the Environmental Assessment Office.

After a public comment period, the government will introduce reforms in the late fall.

The federal government is simultaneously overhauling its environmental assessment process with Bill C-69, but the bill has been criticized for falling short in several key areas.

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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.

Taseko Calls Federal Stop Order ‘Absurd’

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.”

Fish Lake, known as Tetzan Biny to the Tsilhqot’in is considered a sacred cultural place. In its first application for the mine Taseko proposed to use Fish Lake as a tailings pond. In a subsequent application, Taseko redrafted plans to build a tailings impoundment separate from Fish Lake. Both proposals were rejected by the federal government. Photo: Garth Lenz

Tsilhqot’in Hopeful New NDP Government Will Change Fate of Taseko’s Mine

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.

New NDP Government Could Amend, But Not Cancel, Permits: Lawyer

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.

2017 07 28 LT Taseko Response to CEAA Re Notice of Work Activities by DeSmog Canada on Scribd

Ceaa Letter to Taseko – July 28 2017 – New Prosperity – Application of CEAA 2012 by DeSmog Canada on Scribd

Image: A Tsilhqot’in elder at a Fish Lake ceremony. Photo: Garth Lenz

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The Tsilhqot’in First Nation — currently under an evacuation order due to B.C.’s wildfires — learned Monday that permits have been issued for mining company Taseko to conduct exploration for the New Prosperity mine, an open pit gold and copper mine twice rejected at the federal level.

Monday was the outgoing B.C. Liberal government’s final day in power.

Copies of the documentation obtained by DeSmog Canada show the permit was granted to Taseko on Friday July 14th, as members of the Tsilhqot’in were under evacuation orders due to rampant wildfires in central B.C.

“I appreciate this may come at a difficult time for you given the wildfire situation affecting some of your communities, however I made the permit decision Friday, ” Rick Adams, senior inspector with the B.C. Ministry of Energy and Mines, told Tsilhqot’in representatives in an e-mail.

“It’s crazy to see that on their last day, they tell us of this decision,” Chief Roger William of the Gwet’in First Nation, one of six member tribes of the Tsilhqot’in, told DeSmog Canada.

“We’re certainly outraged about it,” he said. “Our people, they found out as we’re dealing with fire and now we’re dealing with a three-year drilling program.”

The permits grant Taseko permission to create 76 kilometres of new or modified trails, 122 exploratory drill holes, 367 excavated test pits and 20 kilometres of seismic lines near Fish Lake, also known as Teztan Biny, an area of cultural and spiritual significance for the Tsilhqot’in.

“Our community has been fighting this for over 30 years,” William, who is also vice-chair of the Tsilhqot’in National Government, said. “Fish Lake is an aboriginal rights area, a place we have land rights to, to fish, and hunt, to catch and use wild horses.”

Chris Tollefson, lawyer with the Pacific Centre for Environmental Law and Litigation, said while there is no rule preventing government from issuing permits during final days in power “there is an obligation on the Crown and on government to conduct itself in a manner that upholds the honour of the Crown.”

Provinces will often issue permits or issue approvals in advance of a federal process, which is intended to signal their support of the proponent, Tollefson told DeSmog Canada.

“During the federal review process they’ll often be a cheerleader for the projects. We’ve seen that regularly in B.C.,” he said.

“What’s unusual here is the federal regulators have been pretty clear this project has some fundamental flaws, so in those circumstances you’d expect the province would take a more circumspect approach when there’s a transition of government and when First Nation rights and title issues are clearly at play.”

According to the Elections B.C. website Taseko donated $123,450 to the B.C. Liberals between 2008 and 2014.

Chief Russell Myers Ross of the Yunesit’in and director of the Tsilhqot’in National Government said he is “speechless at the timing of this insulting decision.”

“It defies compassion that while our people are fighting for our homes and lives, B.C. issues permits that will destroy more of our land beyond repair.”

The New Prosperity mine falls within the Tsilhqot’in Dasiqox Tribal Park, a conservation area the nation has constitutionally protected rights to hunt, fish and trap within.

Granting exploratory permits within Dasiqox “demonstrates a serious attack on meaningful reconciliation,” Ross said in a statement.

The Tsilhqot’in have previously vowed to fight any provincial permits granting Taseko exploratory rights for the mine.

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A bizarre twist in a decade-long battle over a proposed mine on Tsilhqot’in Nation traditional territory could see the B.C. government issue extensive exploration permits for the mine this month even though the project has twice been turned down by the federal government.

The proposal by Taseko Mines Ltd. to build a $1.5-billion open pit, copper and gold mine in the Cariboo region — a plan which received vocal support from Energy and Mines Minister Bill Bennett — was approved in 2010 by the provincial government after a B.C. environmental assessment.

But, the same year, the Prosperity Mine was rejected by the federal review panel, which took a dim view of plans to drain Fish Lake, known to Tsilhqot’in as Teztan Biny, for use as a tailings pond.

The company took a second shot with a proposal for the New Prosperity Mine, which would save Fish Lake and situate the tailings pond two kilometres away in a smaller lake. But, the federal government again turned it down in 2014, despite a trip to Ottawa by Bennett in an effort to persuade the federal government of the importance of the mine to the economy of B.C.

Undeterred, Taseko, which says it has spent more than $130-million trying to develop the mine, attempted to persuade the provincial government not to knuckle under to Ottawa. According to the Elections B.C. website Taseko donated $123,450 to the BC Liberals between 2008 and 2014.

A letter to Premier Christy Clark from CEO Russell Hallbauer, written in May last year, said the B.C. government should be very disturbed “because constitutionally mineral assets are owned by the province and their development is the Provinces’ responsibility, not Ottawa’s.”

Hallbauer wrote: “The B.C. government approving our project and the federal government torpedoing it by not following their own process, is something that needs to be addressed by your administration.”

The letter from Hallbauer suggested that, if the Environmental Assessment Certificate was not amended in a timely way, the province should buy the tenures or that Taseko could launch a civil suit for damages.

Shortly afterwards, the B.C. Environmental Assessment Office amended the original permit, which has been extended to 2020.

Fish Lake, known as Teztan Biny to the Tsilhqot’in, August 2012. Photo: Garth Lenz, all rights reserved.

Now, the province has told the Tsilhqot’in National Government, representing six First Nations, that a decision on allowing a multi-million-dollar exploration plan will probably be made this month, even though no federal permits are in place.

The exploration, which would include a 50-person work camp, 367 test pits, 47 hectares of “new disturbance,” road building and seismic line testing, is adamantly opposed by the Tsilhqot’in and a January letter from Yunesit’in Chief Russell Myers-Ross asked why the province would consider approving more drilling and damage “for a project that cannot be built.”

Myers-Ross accused the province of betraying the Tsilhqot’in people and pleaded for fair treatment.

“The federal government has rejected the project. It is dead, in no small part because our Nation has made a substantial case about the devastating effects that it presents for our people and culture. There is an opportunity here to make the right decision and not repeat the same patterns as the past,” he wrote.

Myers-Ross said in an interview that he finds it baffling that the province would consider allowing more exploration, in the area made up of connected meadows and small streams, frequented by moose, wild horses and grizzlies.

“It’s like the comic villain that keeps coming back,” he said, predicting that, if the exploration is allowed, the Tsilhqot’in Nation will be heading back to court asking for a judicial review and an injunction.

“We will be making sure they don’t set foot on our territory,” he said.

The same message is echoed in a letter to Taseko from Tl’etinqox Chief and Tsilhqot’in National Government tribal chair Joe Alphonse and vice chairman Chief Roger William who accused Taseko of kicking a dead horse.

The letter warns that the Nation is fully prepared to go to court.

“Given our proven Aboriginal rights in the area and the profound cultural and spiritual importance of these lands, your company’s efforts to further disrupt this area to advance a rejected project would represent a severe and unjustified infringement of our aboriginal rights,” it says.

Grand Chief Stewart Phillip, Union of B.C. Indian Chiefs president, said he believes a provincial decision is imminent.

“This is a deliberate provocation. It’s a political move. We are in an election period,” he said.

“It’s bizarre and very underhanded. I think the province is hoping to provoke a confrontation. . . . It’s a very Trump-like move. They are saying Canada has no business meddling in the affairs of B.C.,” Phillip charged.

However, apart from provincial documents given to the Tsilhqot’in National Government, it is difficult to assess the province’s aim as the Ministry of Energy and Mines has ignored all requests for information from DeSmog Canada.

Communications spokesman Suntanu Dalal initially said he knew nothing about the issue, but would look into it. Three phone calls and two emails later, there has been no response.

Meanwhile, Taseko is continuing to fight the federal government’s rejection of the mine, which it says would help bring economic prosperity to an area devastated by the mountain pine beetle.

Key economic benefits would include a $5.5-billion increase in revenues to B.C and 71,000 jobs, according to Taseko background papers.

The company was in Federal Court last week with a constitutional challenge to the Canadian Environmental Assessment Act, asking for two judicial reviews, and has also filed a B.C. Supreme Court civil claim seeking damages against the federal government.

In 2016 the B.C. Supreme Court dismissed a lawsuit Taseko had filed against the Wilderness Committee and, in an unusual decision, the judge awarded special costs to the Wilderness Committee which claimed the case amounted to a SLAPP suit (strategic lawsuit against public participation).

Taseko did not respond this week to requests for an interview.

Image: A member of the Tsilhqot’in beats a drum at Fish Lake, August 2012. Photo: Garth Lenz, all rights reserved.

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