A month after the British Columbia Court of Appeal determined Taseko could proceed with its proposed exploratory drilling program associated with the New Prosperity Mine , the same court “hit the pause button” by granting a stay of its earlier order; effectively granting an order stopping work from commencing until the Supreme Court of Canada determines whether it will hear the appeal sought by the Tsilhqot’in Nation.
As described in our previous bulletin British Columbia Court of Appeal Reaffirms Duty to Consult not a Duty to Agree, Taseko Mines Limited (“Taseko”) has actively pursued development in the traditional territory of the Tsilhqot’in Nation (“Tsilhqot’in”) for over a decade. The area where the New Properity Mine is proposed is subject to proven Aboriginal hunting, trapping and trade rights (but not Aboriginal title).
Despite obtaining a provincial Environmental Assessment (“EA”) Certificate in January 2010, Taseko’s efforts to move the project forward have stalled since the federal government determined it would have significant adverse environmental effects in the area (even as adjusted). The proposed exploratory drilling program would gather geological and engineering data to inform part of the provincial permitting process and ensure a timely start to construction in the event federal approval of the New Prosperity Project is secured.
The underlying proceedings relate to a petition for judicial filed by a former chief of the Xeni Gwet’in First Nations Government (a subgroup of the Tsilhqot’in), which alleges that the Province of British Columbia (“Province”) had breached their duty to consult and accommodate in approving the exploratory drilling program. On March 1, 2019, the British Columbia Court of Appeal (“BCCA”) agreed with the findings of the chambers judge (that the Province did not breach its duty to consult and the decision to approve the drilling program was reasonable) and ultimately dismissed the appeal. The Tsilhqot’in applied for leave to appeal to the Supreme Court of Canada.
Pending a decision from the Supreme Court of Canada regarding its appeal, the Tsilhqot’in made an application to the BCCA staying the order and related permit approval which would have allowed Taseko to proceed with the exploratory drilling program. This is the fourth injunction/stay application brought by the Tsilhqot’in to stop Taseko from proceeding.
Relying heavily on the 2018 reasons of Branch J. and Dickson J.A. granting two of the previous injunctions sought by the Tsilhqot’in, the Court concluded that it was in the interest of justice to grant a stay. The test applied follows the test for injunctions set out in RJR-MacDonald Inc. v. Canada (Attorney General), but is slightly modified as follows:
1. that there is some merit to the appeal in the sense that there is a serious question to be determined (but also whether there is some merit in the leave application);
2. that irreparable harm would be occasioned to the applicant if the stay was refused; and
3. that, on balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted.
With respect to the first factor, the Court determined that the Tsilhqot’in had met the merits test. Rejecting Taseko’s argument that the case did not raise an issue of public importance (such that leave could be granted), Butler J. stated:
The SCC has not yet undertaken a substantive analysis of the sufficiency of consultation and accommodation with respect to proven s. 35 rights. It has yet to consider what “consent” means in the context of consultation and accommodation with respect to such rights and has not applied the justification analysis from Tsilhqot’in in that context.
The second and third factors were held to be largely in line with the previous injunctions in that the harm to the Tsilhqot’in was deemed irreparable and the balance of convenience was similarly in their favour. In reaching its conclusion regarding the balance of convenience, the Court also commented that it was in the public interest to allow the Tsilhqot’in “to address issues that may be important for reconciliation”. This carried considerable weight in the courts decision and was deemed consistent with upholding the honour of the Crown.
Taseko’s New Prosperity Project will remain on hold for at least the next few months until the Supreme Court of Canada can render a decision on whether or not it will hear the case. As noted by the BCCA, if leave to appeal is granted, the underlying case could address a number of novel legal issues which respect to Aboriginal rights.