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

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

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

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

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

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

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

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

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

Exploratory permits allow for 122 drill sites in tribal park

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Taseko did not return calls from The Narwhal.

Exploratory work may boost shareholder interest

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mine permits issued on last day of Christy Clark government

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

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

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

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

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

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

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

Mining plans clash with Indigenous tribal park

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

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

“That’s our church,” Alphonse said.

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

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

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

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

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

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

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

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

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

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

‘Potential for irreparable harm’: Judge

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

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

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

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

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

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

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

B.C. mining laws out-of-date

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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