The Tsilhqot’in Nation, represented by Tim Dickson and Aria Laskin of JFK Law, has succeeded in its application for an interlocutory injunction preventing Taseko Mines Limited from carrying out exploratory drilling work under a Notice of Work permit (“NOW”) for its proposed New Prosperity Mine at Teztan Biny (Fish Lake) and surrounding areas. The injunction will remain in place until the Tsilhqot’in’s appeal of a judicial review decision affirming the NOW is heard and determined.
This injunction application is the latest step in a dispute between the Tsilhqot’in, Taseko and the Crown with respect to the NOW and the proposed mine area more generally – an area of extreme importance to the Tsilhqot’in, who hold proven, conceded and asserted Aboriginal hunting, trapping, trade, fishing, gathering and other rights in the area. As the Crown has conceded, the area is one of “unique and special significance for the Tsilhqot’in cultural identity and heritage.”
The area also has a large gold-copper deposit, and Taseko (who holds mineral claims in the area) has repeatedly attempted to develop mine projects to access that deposit. Initially, it proposed a project (Prosperity) that received a provincial environmental assessment certificate, but was rejected by the federal government after the reviewing panel found it would have significant adverse environmental effects on Tsilhqot’in traditional land and resource use, cultural heritage, and Aboriginal rights. A revised version of the project (New Prosperity) was also rejected by the federal government on largely the same grounds.
Despite these rejections, Taseko continues to try to develop its mine. It applied to amend its provincial certificate (which expires in January 2020) and commenced court proceedings challenging the federal rejection of New Prosperity. While that challenge was rejected by the Federal Court, Taseko appealed to the Federal Court of Appeal, and that appeal is ongoing. In 2016, as part of these efforts, Taseko applied for the NOW, to enable it to undertake an exploratory drilling program to gather information to support permit applications for New Prosperity – a project that had, at that point, neither provincial nor federal approval. The proposed NOW program was extensive, and would cause serious adverse effects. During consultation, Tsilhqot’in took the position that the NOW should not be approved, or should be made conditional on the federal approval of New Prosperity. However, a Senior Inspector rejected that position, and issued the NOW in July 2017.
Tsilhqot’in filed a judicial review application of the approval, and an injunction application to prevent work from starting under the NOW until the judicial review application was heard. The British Columbia Supreme Court granted the injunction but ultimately dismissed the judicial review application in August 2018. Immediately after, Taseko provided notice to the Tsilhqot’in that it intended to start work under the NOW. The Tsilhqot’in filed an appeal of the judicial review decision and an application for another injunction, and the injunction application was heard in September 2018.
In support of its application, Tsilhqot’in argued that the appeal had merit, that the potential harm to the Tsilhqot’in was irreparable, and that the balance of convenience – including the key goal of promoting reconciliation – favoured the grant of an injunction. It also argued that there was no urgency, as Taseko could not meet its 2020 deadline. Taseko opposed the injunction, arguing that it was entitled to the fruits of its judgment below, and that an injunction would cause economic harm in the region, among other harms.
In a decision released from the bench, the Court of Appeal granted the injunction. It found that the likelihood of Taseko being able to meet its 2020 deadline was in “substantial doubt.” It accepted that there was a serious issue to be tried on appeal, that there was potential for irreparable harm to the Tsilhqot’in, and that the balance of convenience favoured the grant of the injunction.
The Court of Appeal’s decision re-affirms that when a proposed course of action will cause irreparable harm to constitutionally protected s. 35 rights – including the right to adequate consultation – that harm will be an important factor in a court’s decision of whether to grant an injunction. The case also arguably re-affirms the importance of situating reconciliation as a key factor in the balance of convenience analysis. As the British Columbia Supreme Court held in granting a similar injunction in 2011, “only by upholding the [consultation] process can reconciliation be promoted; without reconciliation, nothing is accomplished. This interest … is at risk should [an] injunction be denied, and weighs heavily in the balance of convenience” (Taseko Mines Limited v. Phillips, 2011 BCSC 1675, para. 60).