Authors: Rangi Jeerakathil, Anna Beatch, Jared Dunlop
The Federal Court (the “Court”) recently upheld the federal government’s decision to reject a mining project (the “Proposed Mine”) proposed by Taseko Mines Limited (“Taseko”) over environmental concerns raised during the environmental assessment process.
The Proposed Mine was slated to be an open pit copper and gold mine southwest of Williams Lake, British Columbia, within the traditional territory of the Tsilhqot’in peoples.
This was Taseko’s second attempt to have the Proposed Mine approved. The federal government rejected a previous proposal based on concerns that a lake would need to be drained. Taseko revised its proposal to relocate the tailings storage facility and introduce a lake recirculation water management scheme, thereby saving the lake from being drained.
The Proposed Mine underwent a federal environmental assessment pursuant to the Canadian Environmental Assessment Act, 2012 (the “Act”), which included the following steps:
- the federal Minister of Environment (the “Minister”) appointed an environmental review panel (the “Panel”);
- Taseko provided an environmental impact statement setting out its position on whether the Proposed Mine would be likely to cause certain environmental effects;
- the Panel officiated public hearings, hearing expert and lay evidence, cross-examinations and submissions from all interested parties;
- the Panel submitted its report to the Minister stating whether it believed the Proposed Mine was likely to cause any significant adverse environmental effects, and its rationale, conclusions and recommendations (the “Report”);
- after considering the Report, which concluded that toxic water seepage from the tailings storage facility at the Proposed Mine would be greater than what Taseko estimated, the Minister determined that the Proposed Mine was likely to cause significant adverse environmental effects, and referred the matter to the Governor-in-Council (“GIC”) to decide whether those effects were justified in the circumstances; and
- a decision statement was issued to Taesko on February 26, 2014, which communicated both the Minister’s and the GIC’s decisions rejecting the Proposed Mine (the “Decision Statement”).
As a result of the Proposed Mine being rejected, Taseko made two applications for judicial review, one relating to the Report and one relating to Decision Statement.
- First, it sought a declaration that certain findings of the Panel (including its determination that Taskeo underestimated the seepage of toxic water from the tailings storage facility) were invalid, and that the Panel failed to observe principles of procedural fairness in its conduct of the public hearing process.
- Second, it argued that the Minister and the GIC failed in their duty to provide procedural fairness when making their decisions to reject the Proposed Mine.
In brief, the Court rejected both of Taseko’s judicial review challenges. The Court held that the Panel did not breach any procedural fairness principles and that the Report was reasonable and was in fact supported by the record in this case. The Court also held that both the Minister and the GIC met their duty of procedural fairness in making their decisions to accept the findings of the Report and to reject the Proposed Mine.
Three important takeaways can be distilled from Taseko’s legal challenges.
- First, the Court held that the findings of an environmental review panel in regards to technical data will be final and not open to review unless those findings are unreasonable. In regards to the Proposed Mine, the Court held that Taseko was essentially attempting to reargue the technical and scientific positions that were already reasonably rejected by the Panel. The Court refused to reweigh the evidence and instead upheld the Report.
- Second, the Court held that, absent bad faith, the Minister and/or the GIC, in making their decisions to approve or reject a mining project based on the recommendations provided in an environmental review panel’s report, only owe a low level of procedural fairness. Decisions made by the Minister and/or the GIC regarding such projects are the result of a highly discretionary, policy-based and fact driven process. The importance and finality of the decision alone does not justify imposing extensive procedural fairness requirements. Therefore, interested parties such as mining companies or First Nations are not entitled to the same procedural benefits in relation to Minister and/or GIC decisions as they would be before an environmental assessment panel.
- Finally, the Court stated that while the duty to consult with affected First Nations rests with the government, some delegation of the duty is permitted. This may include industry proponents playing an active role in the duty to consult by ensuring that a First Nation’s concerns are appropriately accommodated. However, the Court also stated that if the relationship between a First Nation and an industry proponent is “acrimonious,” reconciliation may be adversely impacted by including industry proponents in all aspects of consultation.
The Court’s decisions in regards to the Proposed Mine demonstrate the Court’s unwillingness to interfere in the environmental assessment process absent unreasonableness, bad faith or a breach of the principles of procedural fairness. The availability of remedies for mining companies or First Nations after an environmental assessment has been completed will be limited.
Therefore, an environmental assessment under the Act is the most apt (and perhaps only) opportunity for any interested party to voice its opinion regarding the environmental impact of a proposed mining project.
Mining companies and First Nations should consult with counsel throughout the environmental assessment process to ensure a fair opportunity is given to present its environmental concerns or justifications for any proposed mining project.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.