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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Proposed reforms to B.C.’s mining act are a positive step but taxpayers are still on the hook for costly clean-up costs, according to Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre.

Sandborn, who has been at the forefront of efforts to reform B.C.’s antiquated mining laws, said while the proposed changes to B.C.’s mining regime address a lack of independent oversight of the industry, they don’t tackle the long laundry list of problems associated with B.C.’s growing mining industry.

That’s because the proposed mining reforms, released last month and now open for public comment, deal only with the Mines Act and not the Mineral Tenure Act, which allows mining claims to be staked by nearly anyone in the world who has access to a computer, even if those claims lie within Indigenous traditional territory or sensitive ecosystems. 

The suggested changes also don’t address ballooning liabilities associated with mining operations. The Environmental Law Centre has pegged the liability costs for old mines in B.C. at $1 billion, while a report from watchdog group MiningWatch Canada estimated the figure to be closer to $3 billion.

“You need to have a guarantee that, when the mine closes up, it’s not going to leave the long-term problems that we’ve seen all over the province,” Sandborn told The Narwhal

“When are they going to ensure the polluter pays rather than taxpayers picking up the tab? The history of mining in B.C. has been that companies come in and get the quick profit and just leave the cost to the taxpayers.” 

This provincial map shows the location of selected major exploration projects, selected proposed mines and mines producing metal, coal and industrial minerals in 2018. Photo: British Columbia Geological Survey

B.C.’s regulation of mining under fire since Mount Polley Mine disaster

Regulation of B.C.’s mining industry has been under fire, both in Canada and internationally, since the 2014 Mount Polley disaster saw 24 billion litres of contaminated mining waste flow into waterways around Quesnel Lake and Hazeltine Creek after a tailings dam collapse.

Mount Polley mine disaster, August 2014. Image: Cariboo Regional District / Youtube

Public anger grew when no charges were laid against Imperial Metals even though a panel of experts found the company at fault due to an unstable foundation. Taxpayers ended up shouldering $40 million in cleanup costs and, in 2017, the company was given permission to discharge mine waste directly into Quesnel Lake.

The Mount Polley dam collapse led to fears in Alaska of similar disasters at Canadian mines along the border above prime salmon-bearing rivers. Alaskans are also dealing with pollution from the abandoned Tulsequah Chief mine, on the Canadian side of the border, close to the salmon-rich Taku River.

A wall separating the containment pond from the Tulsequah River has eroded and Tulsequah Chief mine wastewater now drains directly into the river. Photo: Colin Arisman / The Narwhal

The suggested reforms would separate mining permitting powers from inspection and enforcement duties to alleviate an apparent conflict of interest.

A new statutory decision-maker would be responsible for permitting, while health, safety and enforcement responsibilities would remain with the Chief Inspector of Mines.

The reforms also include the creation of a new oversight body, an Audit Unit, to perform independent mine inspections and beef up the capacity of staff with the Ministry of Energy, Mines and Petroleum Resources to hold mines accountable for health and environmental safety.

New powers for the ministry would give inspectors and auditors the authority to bring equipment or people to mine sites when needed, including technical experts and representatives from Indigenous communities.

Earlier this year, the Environmental Law Centre joined more than 30 mining advocacy and legal organizations earlier this year in calling for sweeping changes to B.C.’s mining laws.

The 69 detailed changes recommended by those groups include expanding civil liability for companies to ensure they pay for pollution, mandating clear risk-based inspection policies for all mines including closed and abandoned sites and requirements for independent analysis of water treatment systems that take into account the full long-term costs of a mine’s lifecycle.

Sandborn said it is important to separate regulation from granting mining rights, “so you don’t have the mine promoter agency regulating people they have lured to the province.” 

But it’s unclear how effective the province’s proposed changes will be at separating promotion and enforcement, Sandborn said.

“It’s not as separate as it is in some jurisdictions where it is different agencies, like Alaska and Ontario. … It’s somewhat of a response to the very fundamental problem the Auditor General pointed out, but we’ll see how separate those agencies end up being.”

Earlier this year reps from 30 mining advocacy and law organizations proposed almost 70 recommendations to change B.C.’s outdated mining laws. Photo: Taylor Roades / The Narwhal

In 2016, Carol Bellringer, B.C.’s auditor general delivered a damning report that concluded the province is not properly prepared to protect the environment from the mining industry. Bellringer found that a major problem is mining companies do not post enough security deposits to cover potential reclamation costs if a firm defaults. She estimated the fund is short more than $1 billion.

Sandborn said he is surprised that, after all the bad publicity, the government is not quickly bringing in effective reforms that look after taxpayers’ interests.

“This is a small step, but my bigger worry, from what I hear within government, is they’re going to blow it on the big issues.” 

The government has boosted the budget of the mines ministry by $20 million over three years to hire more inspectors and conduct more inspections. Talks are being held with industry, Indigenous communities and non-governmental organizations about changes to the Mineral Tenure Act, but more consultation is needed, according to government documents.

Changes to the Mineral Tenure Act, which the reforms do not touch, are essential to stopping mineral claims arbitrarily overriding land use plans that have been put together by stakeholders agreeing on the best use of different areas, Sandborn said.

“Mining claims can go in on Indigenous territories and cultural sites and sensitive watersheds,” he pointed out.

An updated policy for mine reclamation securities is expected later this year, with the presumed aim of ensuring clean-up costs are covered if a mining company fails to live up to its obligations.

In Alaska, mining companies are required to provide 100 per cent security upfront before a mine is permitted to operate. B.C.’s regulations are far laxer.

For instance, Canadian mining giant Teck Resources was required to pay full security for an estimated $560 million in reclamation costs for its Alaskan mine. Teck’s five B.C. mines, which have been plagued with selenium pollution problems, have unsecured reclamation costs of $700 million dollars in total.

For decades B.C. failed to address selenium pollution in the Elk Valley. Now no one knows how to stop it.

Sandborn said he is getting troubling signals that the B.C. government may not join other jurisdictions such as Quebec and Alaska in requiring 100 per cent bonding. 

“Proposals I have seen that were being floated around in the ministry were saying that we would give bonding credit for rocks in the ground. If there were potential minerals in the ground that could be applied to the bond, which is an absolutely bizarre notion that would be absolutely unacceptable and unenforceable,” Sandborn said.

Meanwhile, controversy continues to boil over Taseko Mines’ repeated attempts to explore for copper and gold on sacred land within Tsilhqot’in traditional territory, despite the unwavering opposition of Tsilhqot’in National Government. The New Prosperity Mine was twice rejected by the federal government, but granted an exploration permit by the province’s former BC Liberal government.

In other disputes, Imperial Metals, the same company responsible for the Mount Polley disaster, wants to drill in the Skagit headwaters, adjacent to Manning Park, angering groups in Canada and the U.S, who, again point to B.C.’s poor regulation of the mining industry.

A hiker on Silverdaisy Peak in the area known as the ‘Doughnut Hole’ in the headwaters of the Skagit River. In 1996, Skagit Valley was given a provincial park designation, merging the area with Manning Park, but the middle was left out because of mineral claims that have existed since the 1930s, creating the area known as the ‘Doughnut Hole,’ now the subject of an application for a mining exploration permit by Imperial Metals. Photo: Wilderness Committee

Clock is ticking for public input

Jill Weitz, campaigner with Salmon Beyond Borders, an Alaskan-based group advocating for the protection of transboundary watersheds, said she commends the province for soliciting public comment. But there is a lack of clarity within the process, she said.

“The province doesn’t do a good job in outlining how this will become a part of a bigger, broader process to update B.C.’s archaic mining laws,” Weitz old The Narwhal.

The cutoff for British Columbians to have their say on provincial mining regulations is Friday, October 25. 

There is still time to fill out a survey or email feedback to minesactproposal@gov.bc.ca.

Written submissions will be posted publicly, making it simple to see whether the government has received an earful on needed changes.

In an emailed statement to The Narwhal, the mining ministry said all feedback received will be considered, including in any future legislative, regulatory or policy changes. The ministry will also release a “What We Heard Report” summarizing the overall feedback.

“The intention is for government to introduce the Bill into the Legislature in 2020 should it wish to do so,” the ministry said.

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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Taskeo Mines, proponent of the embattled New Prosperity mine — a $1.5-billion open-pit gold and copper mine, that has been rejected twice by the federal government — is back in court once again. The decades-long battle to build a mine in the sacred territory of the Tsilhqot’in First Nation is entering a new chapter as Taseko appeals to a federal court to revive an application for judicial review rejected by a court tribunal. The application, filed in 2017, claimed the federal government erred in accepting information from Natural Resource Canada regarding the seepage rate of toxic water from the proposed New Prosperity mine and significant environmental threats to Fish Lake and Wasp Lake. Taseko asked for the information, used by a federal-provincial Joint Review Panel to reject the mine, be declared ‘invalid’ and ‘quashed.’

That request was denied by a tribunal and in January Taseko appealed to the Federal Court of Appeal to reconsider the application for judicial review.

The federal government rejected the mine, in part, because it was found toxic water seepage associated with the project would be greater than company estimates.

The continuing volley of legal challenges surrounding the mine’s rejection will not wear down Indigenous opposition to the project, say Tsilhqot’in leaders, who argue Taseko should give up the costly court cases and acknowledge the New Prosperity project will never be built.

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

Timeline: Carol Linnitt / The Narwhal

Legal process draining First Nations time, money: Chief

Chief Jimmy Lulua of Xeni Gwet’in First Nations Government told The Narwhal that there is no chance the mine proposal will go ahead, but the company is using its financial capability to drain Tsilhqot’in money, time and resources.

“The people of Xeni Gwet’in have pushed back since this process started, working for all of our people, not just for our self-benefit as an industry like Taseko Mines does. We Tsilhqot’in people are mandated, bound by the seventh generation law, which means seven generations from now we have the same level of ecosystem intact, being sustainable for future generations.”

“We are the river people and that means we rely on fish. It connects our entire nation together and, if someone is going to threaten that, they will have a war on their hands. That’s how we look at it,” he said.

Plans for New Prosperity would turn Fish Lake, a sacred area known by the Tsilhqot’in as Teztan Biny, into an aquarium, cutting off its outflow and potentially affecting chinook and salmon runs, Lulua said.

The appeal decision will likely take six to eight months, but in the meantime, both sides are awaiting a B.C. Supreme Court decision on an exploratory drilling program, approved by the BC Liberal government on the last day that former premier Christy Clark was in office and while the Tsilhqot’in were under a wildfire evacuation order.

An interim injunction is currently in place preventing the company from working on its plan 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.

But, the mine cannot proceed without federal approval and questions abound about why the company would fight to go ahead with the exploratory program when the mine proposal was turned down by the federal government in 2014 and its predecessor, which proposed draining Fish Lake and turning it into a tailings pond, was rejected in 2010.

Federal reviews found that the mine would be likely to cause severe environmental damage and violate aboriginal rights.

But that has not deterred Taseko from its legal bombardment and, percolating in the background, is yet another case, which is before B.C. Supreme Court, claiming damages against the federal government for its failure to approve the mine.

“Unfortunately Taseko Mines wouldn’t take no for an answer,” said Ecojustice lawyer Sean Nixon, who appeared in the Federal Court of Appeal in January on behalf of MiningWatch Canada.

If the Federal Court of Appeal turns down the Taseko case, the only route forward for the company would be the Supreme Court of Canada, but that would mean applying for leave to appeal — something that is not frequently granted, Nixon said.

The cases are important because of the potential of the mine to harm the environment and the need to support the Tsilhqot’in in their fight to protect their traditional territory, Nixon said, adding there is also a need to support the federal panel’s precautionary approach.

Taseko’s proposal to build New Prosperity suggested that approval should be given first and details about environmental protection could be worked out later.

That raised serious red flags, Nixon said.

“If panels approve projects without knowing how companies plan to address serious environmental risks, those projects can end up proceeding before anyone knows whether and how those risks can be managed and mitigated,” he wrote in a blog post.

Lulua hopes the decision will support the Tsilhqot’in position, but the frequent court cases have made him cynical.

“We thought it was the end when the first federal assessment told them ‘no.’ We thought it was over then, but the court system keeps giving them loopholes,” he said.

The company did not return calls from The Narwhal.

The Taseko website, while extolling the economic and social value of the New Prosperity mine, claims that it has the potential “to dramatically increase shareholder value.”

However, because of the federal government decision and ongoing legal proceedings “there is considerable uncertainty with respect to successful permitting of the project,” it says.

Meanwhile, Taseko can be assured that the Tsilhqot’in will not be discussing the mine with a company that has shown disrespect for the people and the culture, Lulua said.

“The bridge between us and Taseko Mines is burned. That bridge is gone. They can’t rebuild it,” he said.

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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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The Tsilhqot’in Nation is back in court this week in another effort to stop Taseko Mines Ltc. from drilling, bulldozing trails and building a 50-person work camp in an area considered a sacred site by the First Nation.

On Friday the B.C. Supreme Court turned down an application by the federal government to stop the exploration work, ruling that it does not violate the Canadian Environmental Assessment Act.

The federal government, which has twice turned down Taskeko’s application for an open-pit copper-gold mine because of “significant adverse environmental effects,” argued that a plan for 122 exploratory drill holes, 367 excavated test pits and 20 kilometres of seismic lines, violated the Environmental Assessment Act.

The federal government contended the activities are not truly exploratory, but instead, are detailed design work for the proposed New Prosperity Mine  — a plan that has already been rejected.

The mine, proposed for an area 125 kilometres southwest of Williams Lake, cannot be built without federal approval.

Last year, at the height of wildfires in the area, and days before the new NDP government was to be sworn in, the former B.C. Liberal government authorized Taseko to go ahead with the exploration work. The provincial government previously issued an environmental assessment certificate for the mine in 2010.

Taseko argued successfully in court that the exploration activities are not within the scope of the federal Assessment Act and the injunction application was refused by Judge Carla Forth.

A company spokesman previously said a court ruling was needed to sort out a jurisdictional dispute between the federal and provincial governments and that the drilling and trail-building was simply information-gathering.

On Monday lawyers for the Tsilhqot’in Nation were in B.C. Supreme Court asking for a judicial review of the B.C. Mines Act permit for the drilling program and asking for an injunction to stop the work from proceeding in the meantime.

Taseko’s continuing efforts to build a mine, in a spiritually and culturally significant area, is a waste of everyone’s time and should never have happened, said Chief Russell Myers Ross, Tsilhqot’in National Government vice-chairman.

“The approval of an extensive drilling program for the stated purpose of advancing the New Prosperity project — after it was rejected by the federal government and after Taseko’s legal challenges were dismissed by the Federal Court — is absolutely absurd,” he said.

Tribal Chairman Joe Alphonse said Taseko is making a mockery of the environmental review process and the justice system and illustrates why the provincial environmental review  process needs to change.

“Cases like the Tsilhqot’in decision have led to policy changes throughout Canada — it’s time for business and government in B.C. to follow suit,” Alphonse said in a news release.

The B.C. government is currently conducting a review of the environmental assessment process.

In a landmark case in 2014, the Supreme Court of Canada granted aboriginal title to the Tsilhqot’in for about 1,700 square kilometres of land. The proposed mine is adjacent to that area and the First Nations have declared it an area of proven aboriginal rights.

Plans for the  $1.3-billion New Prosperity Mine, which Taseko describes as Canada’s largest undeveloped copper-gold project, took the place of the company’s initial application for the Prosperity Mine, which was rejected by the federal government, largely because of plans to drain Fish Lake, known as Teztan Biny in Tsilhqot’in language.

“Right now, the only thing that could stand in the way of Taseko Mines sending in bulldozers and drills into Fish Lake is the Tsilhqot’in National Government’s judicial review and injunction application — or B.C. NDP action of some kind,” JP Laplante, the First Nation’s mining, oil and gas manager said in an email.

The B.C Supreme Court case is scheduled to continue until Thursday.

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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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The Cariboo Chilcotin Conservation Society (CCCS) abruptly resigned this month from the Technical Advisory Committee that keeps tabs on water discharges from Taseko’s Gibraltar Mine, the second-largest open-pit copper mine in Canada.

After eight years there has been “absolutely no progress” on improving the mine’s water management practices, society chair Bill Lloyd wrote in a letter sent to other members of the committee.

Gibraltar Mine, northeast of Williams Lake, is 75 per cent owned by Taseko Mines Ltd., which took over the mine site in 1999.

An application for a permit to discharge water into the Fraser River was made in 2005 and granted in 2009. In 2015 the province gave temporary permission for the mine to increase the discharge so the effects could be studied — the company now wants that discharge permit made permanent.

“Local mine staff have been receptive to our concerns, but senior mine management and the Ministry of Environment have not supported our position,” Lloyd wrote, adding that instead of working together on environmentally acceptable solutions to mining waste “the relationship that exists at present is totally dysfunctional and will result in a mine that, at closure, will still be dumping all contaminated site water into the Fraser River.”

The company says it didn’t see the resignation coming.

“We were surprised and frankly disappointed that they decided to quit,” Brian Battison, Taseko vice-president of corporate affairs, told DeSmog Canada.

“We are seeking to make the discharge permit permanent,” Battison said, adding data has been gathered on the release of mine waste into the river for over eight years. “There have been no effects on aquatic life,” he said.

But the Cariboo Chilcotin Conservation Society, which has been a member of the mine’s advisory committee since 2009, has a mandate to protect the health of the Fraser River watershed, Lloyd wrote.

The conservation organization has been a member of the advisory committee since it started in 2009, with a mandate to represent the concerns of the general public. The committee, made up of representatives from First Nations, the company and federal and provincial governments, receives briefings from the mine operators on weekly tests on water discharged into the Fraser River and then provides feedback to the company.

Although the group disagrees with direct discharge of tailings effluent into the river, the aim was to work with the committee to improve water management and encourage the use of passive treatment, Lloyd wrote.

Taseko’s Contaminated Water Discharge into #FraserRiver Prompts Resignation of Community From #Mine Group https://t.co/CqMJLOvMOe #bcpoli #cdnpoli @MiningWatch

— DeSmog Canada (@DeSmogCanada) November 20, 2017

“Lax regulations” on Effluents in Waterways

Ugo Lapointe of MiningWatch Canada said mining companies should be spending more on improving water treatment before discharging effluent into the environment, but lax regulations allow them to use natural water bodies to dilute contaminated effluents.

“They are then being asked to monitor the pollution levels at 100-metres or more from the discharge point,” Lapointe told DeSmog Canada.

“This should not be allowed or, at least, be used as the very last resort if no other treatment technologies are available.”

Lloyd said his resignation comes with a sense of failure, but, as a volunteer organization, it is felt the time could be better spent on other community projects.

An Environment Ministry spokesperson confirmed that the test results have been reviewed and have not shown any problems with either the original discharge or the increased discharge.

“These results have shown that the discharge has not had any ecologically significant impacts to the Fraser River and water quality is being protected,” said David Karn in an emailed response to questions.

The discharge is needed to ensure water does not build up on site and the tailings dam does not have to be raised to store more water, Karn said.

Discharge of Mine Waste into Environment Not Correct Solution

The mine accumulates six million cubic metres of water every year, mainly from rainfall, snowmelt and groundwater, and that goes into the tailings pond along with mine water treated with lime.

Lloyd said direct discharge into the Fraser is an easy solution, but it is not the correct one for the health of the watershed.

The society wants surrounding natural wetlands to be used to treat wastewater through biological and ecological processes, instead of water from the mine being piped or ditched to the tailings storage pond and treated with chemicals.

“The cumulative effects of this practice will remain unknown for some time and it is a problem that will be inherited by our grandchildren and the taxpayer,” Lloyd wrote, adding that a fresh approach is needed with decisions based on science rather than political expediency.

“Huge resources are spent on the [committee] justifying a bad practice. These resources could be better directed to actually improving site water quality,” Lloyd said.

Battison said at the society’s urging, the mine did conduct a passive water treatment at a local wetland, but large water volumes made the practice difficult to scale.

“We are working with them and taking their ideas, but you can’t just take water and put it out into the environment as was suggested…It is potentially feasible for smaller volumes, such as when there is closure of the mine,” Battison said.

The fate of the discharge permit now rests in the hands of the provincial government.

Karn said recommendations from the Technical Advisory Committee, ministry staff and First Nations will likely go to the statutory decision maker sometime next year.

Image: Gibraltar Mine. Photo: Taseko via Facebook

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