The company argues the project — twice-rejected at the federal level and opposed by the Tsilhqot’in First Nation — was denied based on ‘invalid’ toxic water seepage estimates

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.

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.

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