BC Court of Appeal Affirms Tsilhqot’in’s Injunction Against Taseko

Province’s Top Court Dismisses Taseko’s Applications for Leave to Appeal

On December 17, 2019, Justice Dickson of the BC Court of Appeal released reasons for judgment dismissing two applications for leave to appeal filed by Taseko Mines Ltd.

In her oral reasons, Justice Dickson endorsed the reasons of the chambers judge, Justice Matthews, who had heard and decided the twin injunction applications brought by Taseko and the Tsilhqot’in Nation earlier this year. Justice Matthews issued an injunction in favour of the Tsilhqot’in, and dismissed Taseko’s injunction as moot (See: Taseko Mines Limited v Tsilhqot’in National Government, 2019 BCSC 1507).

In her decision, Justice Dickson found that the chambers judge had given thorough reasons for judgment after hearing the argument from both sides over three days and noted that the Court of Appeal is very reluctant to grant leave on discretionary orders such as ones granting injunctive relief.

The most significant issue on appeal involved whether the chambers judge erred in applying the default “serious issue to be tried” injunction standard, rather than the more stringent “strong arguable case” standard. Taseko argued that the chambers judge should have selected the more demanding test on the basis that its exploratory permit would expire before an injunction in favour of the Tsilhqot’in would likely end, and therefore would ultimately deny Taseko any chance to exercise its rights within the lifetime of the permit.  Taseko argued that the chambers judge’s finding that the permit was renewable for two additional years (up to July 2022), and that this renewal was “essentially mechanical”, was an error of law.

Justice Dickson disagreed, holding that deviation from the default “serious issue to be tried” standard is only warranted in rare cases. She found that Justice Matthews was well aware of the factual circumstances regarding renewal authorization, and her conclusion in respect of the renewal of the permit was available to her on the evidence.  Justice Dickson further agreed with the Tsilhqot’in’s submissions that a “material risk” that the permit would not be renewed was not sufficient to justify moving to the higher standard.

Justice Dickson also dismissed Taseko’s “balance of convenience” arguments about delay, clean hands, and the status quo.  She held that they did not constitute errors in principle, as alleged by Taseko, but were, on the contrary, attempts by Taseko to have the Court reweigh findings that were in the discretion of the chambers judge.  She noted that the law on appellate courts intervening in this aspect of a judgment was limited to exceptional circumstances.

Justice Dickson ultimately agreed that the proposed appeals had no reasonable prospect of success – a key criterion on a leave to appeal application – and that the underlying judgment was fact-dependent, involved well-settled law, and did not raise issues of sufficient importance to warrant the appellate court’s intervention.  As a result, she dismissed both applications for leave to appeal.