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Federal Court Upholds Canada’s Refusal to Approve the New Prosperity Project

Fasken
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Indigenous Law Bulletin

The Federal Court recently released two decisions arising from the proposed New Prosperity mine project in the interior of British Columbia. Both challenges were brought by the proponent in response to the federal government’s refusal to issue the project an environmental assessment approval, and both challenges were dismissed.

Challenge in relation to the environmental assessment process

In Taseko Mines Limited v. Canada (Environment), 2017 FC 1099 the proponent argued:

  1. that public hearings held by the Joint Review Panel conducting the environmental assessment were procedurally unfair; and
  2. that the Joint Review Panel’s conclusions in regard to the issue of toxic water seepage was unreasonable.

In regard to the issue of procedural fairness, the Court found that the proponent was owed a high degree of procedural fairness during the review process but that it had, in fact, been afforded it. In regard to the issue of water seepage, the court found that the Panel’s conclusions were reasonable. The Court noted that if the Panel were forced to accept the adaptive and forward-looking management schemes supplied by the proponent, the value of the review panel process would be undermined by essentially pushing off substantive decisions to a later stage.

Challenge in relation to the consultation process

In Taseko Mines Limited v. Canada (Environment), 2017 FC 1100 an interesting issue arose as to whether the proponent had a right to know about the consultation taking place between the Crown and the Tsilhqot’in Nation with respect to the proposed mine project. Ultimately, the Court concluded that a proponent does not have a right to take part in the consultations that occur between the Crown and a First Nation. Although the Court went on to state that this does not mean that a proponent may never play a role in such consultations, the Court also stated that “reconciliation may be adversely impacted by a requirement that every interaction between the Crown and a First Nation be provided to a proponent for comment” in cases where the relationship between a First Nation and a proponent is “acrimonious”.

A consequence of the Court’s conclusion is that situations may arise where a project is rejected based on information shared during consultation without providing the proponent with an opportunity to comment on that information. This conclusion appears to run counter to the actual practice of consultation, which, in addition to Crown-Indigenous engagement, generally involves an exchange of information between both a proponent and an Indigenous group, and a proponent and the Crown, to allow for a meaningful and informed consultation process, as well as the development of effective and practical accommodation measures.

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