The Narwhal | News on Climate Change, Environmental Issues in Canada

Mining Company Loses 5-Year B.C. Lawsuit Meant to ‘Silence’ Critics

Judith Lavoie — Sun, 17 Dec 2017 23:47:41 +0000

The Wilderness Committee has won a landmark defamation case brought against it by Taseko Mines Ltd. but, despite the win, the non-profit environmental group will suffer financially after fighting the company in court for five years.

The case is being held up as a textbook example of why anti-SLAPP legislation is needed in B.C.

“We are very proud to have stood our ground, but B.C. very much needs anti-SLAPP legislation. We were completely innocent and yet this company was able to keep us in the courts for five years — and their pockets are much deeper than ours,” said Wilderness Committee national campaigner Joe Foy.

Strategic Lawsuits Against Public Participation (SLAPP) cases are usually launched by companies trying to silence their critics. B.C. briefly had Canada’s first anti-SLAPP law which was brought in by the former NDP government, but repealed by the BC Liberals who feared it would lead to a “protest culture” shortly after their election in 2001.

Ontario and Quebec are currently the only provinces with such legislation.

ICYMI: Laws Needed to Protect Citizens from Industry, Government SLAPP Suits: B.C. Civil Liberties Association

Now Foy says it’s time to bring back a law to stop deep-pocketed companies like Taseko Mines from dragging Canadians through the courts because the company doesn’t like what is being said about their project.

“The company didn’t like what we said about their risky, environmentally destructive open-pit mine proposal — so they took us to court,” he said.

“Some industrial projects should be stopped and people need to be able to say that without fear of getting sued.”

The B.C. Court of Appeal upheld the B.C. Supreme Court decision that the company’s lawsuit — which was seeking actual and punitive damages — was launched “to silence critics on a matter of public importance.”

“We are very proud to have stood our ground, but B.C. very much needs anti-SLAPP legislation. We were completely innocent and yet this company was able to keep us in the courts for five years — and their pockets are much deeper than ours.” https://t.co/AqDhiuHNBE

— DeSmog Canada (@DeSmogCanada) December 17, 2017

However, the lower court award of special costs to the Wilderness Committee, ordered because the judge agreed the company had unduly dragged out the court case, were struck down by the appeal judges.

The Wilderness Committee has insurance that will help cover many of the costs, but the group will still be in the hole for about $20,000, plus staff time and effort, and the increased cost of insurance will be an ongoing expense, said Foy, who added that the cost would have been huge without insurance.

The threat of such suits inevitably has a chilling effect when people want to speak out against a project, said Foy.

“It could be someone speaking at a public meeting and the next thing, you have papers served and, before you know it, you have ferocious lawyers breathing down your neck,” he said.

The provincial government has not made any commitment to bring in anti-SLAPP legislation since coming to power, but a spokesman for the Ministry of the Attorney General said anti-SLAPP legislation is under consideration.

“Government is looking at SLAPP lawsuits and exploring legislative options that are fair for the people of British Columbia,” he said.

Other groups pushing for the legislation include B.C. Civil Liberties Association, Union of B.C. Municipalities and Ecojustice.

The Taseko saga started in 2012 when the company claimed the Wilderness Committee had defamed the company in comments on the Wilderness Committee website about Taseko’s proposed New Prosperity open-pit copper and gold mine near Williams Lake, in Tsilhqot’in Nation territory.

The controversial project, bitterly opposed by the Tsilhqot’in Nation, was approved by the B.C. Environmental Assessment Agency, but twice rejected by the federal government.

The initial plan involved draining Fish Lake — considered sacred by the Tsilhqot’in — to store toxic tailings. The second incarnation, after the proposal was rejected by the federal government, came up with an alternate plan for tailings, but the federal Environment Ministry determined that the seepage would be toxic to fish in nearby waterways.

In addition to the Wilderness Committee decision, this month, Taseko Mines has lost two judicial review applications made to the Federal Court of Canada. Both were asking for reviews of federal decisions, claiming a lack of procedural fairness.

The court dismissed both applications and ordered Taseko to pay the court costs of the Tsilhqot’in Nation and the federal government.

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Marilyn Baptiste Wins Prestigious Goldman Prize, Elevates Indigenous Struggle Against Mines

Stephen Leahy — Wed, 22 Apr 2015 18:05:13 +0000

Marilyn Baptiste of the Xeni Gwet’in First Nation in British Columbia has won the prestigious $175,000 Goldman Prize for her five-year effort to prevent construction of the Prosperity gold and copper mine 600 kilometres north of Vancouver.

“I hope the Goldman award will bring world recognition to help us protect our land,” Baptiste told DeSmog Canada. “We’d like to improve our lives, but our land and water comes first."

That simple statement echoes the words of millions of indigenous peoples in Canada and around the world facing governments and industries intent on extracting minerals, oil, coal, gas and timber from their lands.

“It’s the same story everywhere,” she said.

However, the beginnings of a new story may be in the works in Canada. Baptiste is a member of the Tsilhqot’in people who won a landmark Supreme Court of Canada decision in 2014 that granted aboriginal title to more than a 1,750-square-kilometre area in the Cariboo-Chilcotin area.

For more than 20 years, the 3,000-member Tsilhqot’in opposed clear-cut logging on its unceded territory in and around the Nemaiah Valley. The Tsilhqot'in have no treaties with governments, but the B.C. government approved the logging regardless. The Supreme Court ruled that B.C. had infringed on the rights of the Tsilhqot’in.

Most of B.C. is unceded territory, so the implications of the Supreme Court decision are potentially far-reaching for the rest of the province.

“Our land, our water, our future generations are not for sale," Baptiste said.

Vancouver’s Taseko Mines Ltd, the proponent of the renamed “New” Prosperity Mine, says it will proceed with its project because it is outside of the 1,750 square kilometre Tsilhqot’in territory.

Taseko has spent 20 years trying to get the open pit mine built beside Teztan Biny (Fish Lake). Although the project was approved by B.C., a federal environmental review panel rejected the project in 2010 for its serious potential environmental and cultural impacts. In a rare statement, then minister of environment Jim Prentice said the project would destroy Fish Lake and surrounding streams and wetlands.

A Taseko animation of the New Prosperity Mine plans for Fish Lake via Youtube.

Taseko made some changes, called it "New" Prosperity and re-submitted it to the federal review panel soon after with the blessing of the B.C. government. Taseko started to work on the mine in 2011 without getting federal approval.

That’s when Baptiste stood up and started a one-woman blockade preventing construction crews from reaching the proposed mine site. Alone and in a very remote location, Baptiste drew her courage from the mountains around her.

Baptiste stands over a map of Tsilhqo'tin Territory. Photo: Goldman Environmental Prize

“We’re part of the mountains and lakes. They’re our source of health and sustenance….It is just my duty and responsibility to protect our lands, water, wildlife, wild plants for our future generations,” she said.

Baptiste was soon joined by members of her community and the Tsilhqot’in Nation in blocking the road.

The federal government rejected Taseko again in 2013, saying it would cause irreversible environmental damage. Taseko’s response was to sue the federal government. And then again when it lost.

In January 2015, the B.C. government granted Taseko a new extension to build the mine.

“It’s been five years but it feels like ten,” said Baptiste.

“We’re definitely going to continue to oppose the project.”

The open pit mine would be up to 1.6 kilometres wide and more than 500 metres deep. The contaminated tailings will be dumped into a tailings pond near the lake — the specifications of which are based on those of the Mount Polley tailings pond, Baptiste said.

The Mount Polley tailings pond, about four square kilometres in size, failed in August 2014, releasing millions of cubic metres of contaminated water. It was considered one of Canada’s biggest environmental disasters.

Indigenous peoples appreciate modern technology and want to enjoy the benefits, but not if that means the destruction of their land and waters, Baptiste repeated.

“We can’t continue the way we are going. Mother Earth is telling us we are going the wrong way.”

Laws and regulations for mining and the extractive industries need major reforms, something First Nations in the Mount Polley area are actively engaged in pursuing. Governments need to work with local people, not ignore or disrespect them as the B.C. government has, Baptiste said.

Image Credit: Goldman Environmental Prize

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

Tim McSorley — Mon, 12 May 2014 22:32:48 +0000

"The only thing I can see is they are buying time. They're putting the project on life support," said Chief Joe Alphonse of the Tletinqox-t'in and the tribal chairman of the Tsilhqot'in National Government, over the phone from his office in northern B.C. On life support is Taseko Mines' latest effort to open a gold-copper mine in B.C.'s northern interior, in the heart of Tsilhqot'in & Secwepemc Nations' traditional territory. The Vancouver-based company has been attempting to get the mine up and running for over five years now, and has faced strong opposition along the way. The project has been rejected by the federal government twice, both times after negative findings from a federal environmental assessment panel. The latest rejection, this past October, found that the mine's adverse effects greatly outweighed any economic benefits.

These negatives include impacts on the water quality in the area, including Fish Lake (known by the Tsilhqot'in as Teztan Biny), on fish populations and ecosystems, and on the traditional and cultural use of the land by First Nations people. There would also be significant impacts on the South Chilcotin grizzly bear population. But the company isn't done yet and has filed two judicial reviews, both asking the Federal Court of Canada to throw out the latest decision. While the first request hinges on a dispute about the science behind the panel's finding, a review filed in late March is challenging the fairness of the review process itself, and could impact how the federal government consults with First Nations and what projects would be subject to future federal environmental assessments. From Prosperity to New Prosperity The New Prosperity mine, as Taseko's project is called, would be a $1.5 billion undertaking that the company says will create 550 direct jobs and add $340 million to B.C.'s GDP. Its first version, the Prosperity Mine, was approved by the B.C. government after the provinces own environmental review in 2010, saying that while the mine would have a significant impact on the environmental, those were justified by the economic benefits.

But the federal government saw it differently, and rejected the mine a first time, based in large part on the company's proposal to drain Teztan Biny and use it as a tailings pond to hold toxic run-off from the mine, as well as the project's impact on traditional First Nations use of the land. Tetzan Biny is considered a sacred site by the Tsilhqot'in and is also known as one of the top 10 game fishing lakes in the province.

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

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