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Tsilhqot’in community continues to spend scant funds on court cases, members are baffled that the government has not withdrawn the exploration permit, Chief Joe Alphonse, Tsilhqot’in National Government Tribal Chairman, told The Narwhal.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.

Fish Lake, known as Teztan Biny in Tsilhqot’in language. Photo: Garth Lenz