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The injunction prohibits TML from carrying out the drilling program until the Supreme Court of Canada decides whether to hear an appeal of British Columbia’s decision to approve the drilling program. In oral reasons today, the B.C. Court of Appeal emphasized that this appeal could raise new and important issues of law, because it would be the first time the Supreme Court of Canada addressed the Crown’s duties of consultation in the context of proven Aboriginal rights. The drilling program at issue in this appeal would have serious impacts in one of the only areas in Canada that is subject to a court declaration of proven, unceded Aboriginal rights to hunt, trap and trade.
Taseko’s proposed drilling program is for the stated purpose of advancing construction of the New Prosperity Mine, despite the fact that the Federal Government rejected New Prosperity in February 2014, meaning the proposed mine cannot be built as matters stand. Two independent federal panels have confirmed the unique and special significance of Teẑtan Biny (Fish Lake), Yanah Biny (Little Fish Lake) and Nabas (the surrounding area) to the Tŝilhqot’in people as a valued hunting, trapping and gathering grounds. This area is also significant as a place for ceremony, spiritual practices and community gatherings, as an actively used cultural school, as “home” to the many Tŝilhqot’in members born and raised there, and as the resting place of their ancestors.
The Tŝilhqot’in Nation is cautiously relieved by the BC Court of Appeal’s temporary protection of the given area from damage and disruption by TML, over the opposition of the Nation, and in the face of the rejection of New Prosperity by the Federal Government.
Nits’ilʔin (Chief) Joe Alphonse, Tribal Chairman, Tŝilhqot’in National Government, says, “The Tŝilhqot’in Nation being granted this temporary stop to the drilling permit in the Teẑtan Biny area is a small victory when it comes to Indigenous rights in this country. Canada’s current consultation and accommodation framework was established for First Nations who had yet to prove Aboriginal rights or title. We have both proven Aboriginal rights and proven Aboriginal title, therefore consultation must be above and beyond for our proven Aboriginal rights or it would be pointless for us to continue to utilize the Canadian court system. We are asking the Supreme Court of Canada to hear this appeal and affirm once and for all that proven Aboriginal rights must be taken seriously. Canadian courts have to recognize the Tŝilhqot’in Nation judgment and give real meaning to the protection of Aboriginal rights or we are going to have discontent throughout Canada for resource extraction and relationships with First Nations. We are relieved that Teẑtan Biny is now, temporarily, protected and the Supreme Court of Canada has the opportunity to hear this important appeal.”
Nits’ilʔin (Chief) Russell Myers Ross, Vice-Chair, Tŝilhqot’in National Government, says, "This is a high profile case given the Tŝilhqot’in Nation's history with Taseko Mines Ltd. The BC Court of Appeal decision is welcomed as interim relief and we appreciate that the Courts understand the seriousness of this matter. It is still unfortunate that we, collectively, spend time and resources on exploration for a mine proposal that cannot proceed. As a Nation, we will continue to protect Teẑtan Biny, Nabas and the Dasiqox watershed."
Nits’ilʔin (Chief) Jimmy Lulua, Xeni Gwet’in First Nations Government, says, “Our Elders and people travelled to the BC Court of Appeal to stand strong in the face of this direct threat to our culture, our sacred places and our Tŝilhqot’in way of life. We will remain cautiously optimistic that there is justice in the Canadian court system and this temporary relief will lead to a full stop to this unacceptable drilling program. Mining companies like Taseko Mines Limited should be an example of how not to work with Indigenous people. Our people have spoken loud and clear that they don’t approve of any mine or drilling program that will damage or threaten our cultural way of living, fishing, hunting and practicing our spirituality. It simply cannot be acceptable to inflict this much damage in a place of such spiritual and cultural importance to our people, all in the name of a mine project that cannot and will not be built. We are calling on the Supreme Court of Canada to set this straight. It’s about time for Indigenous rights to be upheld in this country.”
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Negotiations and External Affairs
Tsilhqot’in National Government
Tez^tan Biny (Fish Lake)/New Prosperity Mine proposal
Mar. 18, 2019 - The Ts^ilhqot’in have struggled for decades to have their Indigenous rights respected, leading to over 25 years of court cases and resulting in Canada’s first, and to date, only, declaration of Aboriginal title by the Supreme Court of Canada in 2014. Tez^tan Biny ( Fish Lake) is one of BC’s most productive wild trout lakes, and the surrounding area is an active Ts^ilhqot’in cultural school and sacred site, adjacent to the Aboriginal title lands and inside one of Canada’s only court-declared areas of proven Aboriginal hunting and trapping rights.
Despite the court declaration of Aboriginal rights to the Tez^tan Biny area, Taseko Mines Ltd. (TML) has tried for almost 30 years to advance a massive open pit mine - first called Prosperity Mine and now the “New” Prosperity Mine proposal - over the concerns and objections of the Ts^ilhqot’in Nation. Twice they have emphatically failed to obtain federal environmental approval, in both cases from the most pro-mining federal government in recent history.
Under the Canadian government of then-Prime Minister Stephen Harper, the Prosperity Mine proposal was rejected in 2010. The subsequent New Prosperity Mine proposal was rejected in 2014. Both times the mine proposals were rejected, in part, because of the devastating and immitigable impacts that it would mean for Ts^ilhqot’in rights, culture and cultural heritage.
Since 2014, the Ts^ilhqot’in have repeatedly been forced into court to defend the Federal Government’s rejection of the New Prosperity proposal, and have spent almost three years and considerable effort to ensure that no means no. The integrity of our environmental laws is at stake.
Remarkably, on July 14, 2017, the BC Government granted Taseko a permit authorizing an extensive drilling program at Tez^tan Biny and the surrounding area of Nabas, to advance the New Prosperity project – despite the face the Federal Government rejected this project and it cannot lawfully be built as matters stand. The Ts^ilhqot’in were compelled to respond with two more court actions to protect Tez^tan Biny and Nabas, and are in the BC Court of Appeal on March 22, 2019 seeking an injunction to prevent the drilling permit from proceeding.
All of this is happening in a “post-Ts^ilhqot’in” era. Despite the 2014 Supreme Court decision, the unqualified adoption in Canada of the United Nations’ Declaration on the Rights of Indigenous Peoples, and the Calls to Action by the Truth and Reconciliation Commission, the Ts^ilhqot’in are still being forced to go to great lengths to protect an area of immense spiritual, cultural and environmental importance.
Permits Approved for Drilling and Exploration Permits for Rejected Project (July 2017)
· The BC Ministry of Energy and Mines granted approval in July 2017 for TML to conduct a major drilling and exploration program to support construction of the twice-rejected mine project.
· The company wants to begin extensive road building, drilling, test pits, and seismic line testing, and build a 50-man camp.
· These activities would have extensive impacts on Ts^ilhqot’in lands, waters, wildlife, cultural use, and court declared Aboriginal rights.
· In December 2011, addressing a much smaller drilling program, the BC Supreme Court noted that each new incursion into the area with a drilling program causes irreparable damage to the habitat and further diminishes the exercise of (court-declared) Aboriginal rights by the Ts^ilhqot’in people.
The Honourable Mr. Justice Grauer [Taseko Mines Ltd. v. Phillips, 2011 BSSC 1675]
“Each new incursion serves only to narrow further the habitat left to them in which to exercise their traditional rights. Consequently, each new incursion becomes more significant than the last. Each newly cleared trail remains a scar, for although reclamation is required, restoration is impossible. The damage is irreparable.” [Para 65]
· The Ts^ilhqot’in Nation is opposed to any further disturbance at Tez^tan Biny (Fish Lake) and Yanah Biny and is taking steps to ensure that this does not occur.
· Within two days of notice of the permit, the Ts^ilhqot’in Nation filed in BC Supreme Court: (1) a petition for judicial review of the permit as a breach of the Crown’s duty to consult and accommodate; (2) an action claiming unjustified infringement of established Aboriginal rights; and (3) injunction applications in both proceedings to prevent Taseko from carrying out the drilling program until the above claims are heard by the court and a decision is rendered.
· The Ts^ilhqot’in were in BC Supreme Court at the end of July 2017 seeking the injunctions prohibiting the drilling program from going forward.
· On August 23, 2018 the BC Supreme Court upheld the drilling permit issued by the B.C Liberals.
· On September 17, 2018, the BC Court of Appeal granted an interlocutory injunction, temporarily stopping any exploration from moving forward until the appeal of the BC Supreme Court decision was heard and decided by the BC Court of Appeal.
· On March 1, 2019 the BC Court of Appeal upheld the drilling permit.
· The Ts^ilhqot’in Nation was in Federal Court in Vancouver in January and February 2017 to oppose an attempt by Taseko Mines Limited (TSX:TKO) (TML) to overturn the 2014 federal rejection of TML’s proposed New Prosperity Gold-Copper Mine proposal.
· The TML case includes a constitutional challenge to the Canadian Environmental Assessment Act, 2012 (CEAA 2012), arguing that CEAA 2012 goes too far in protecting the interests of Aboriginal peoples and that those protections should be struck down.
· In essence, the company is attempting to further reduce the protection of our already gutted federal environmental laws, particularly as they apply to Aboriginal people.
· In December 2017, the Federal Court dismissed both of TML’s legal challenges to the federal rejection of New Prosperity. Taseko appealed from these judgments.
· In January of 2019 the Ts^ilhqot’in Nation was at the Federal Court of Appeal as a respondent to Taseko’s appeals from the Federal Court judgments.
· Unprecedented in Canadian history, the Ts^ilhqot’in have been subjected to not one but two environmental assessments for essentially the same project.
· Both the Prosperity Mine proposal and the New Prosperity Mine proposal were reviewed by different independent expert federal panels.
· The Prosperity panel report was released in 2010.
· The New Prosperity panel report was released in 2013.
· Both times the Panels found significant, adverse, and in many cases, immitigable impacts to the environment, and Ts^ilhqot’in culture, heritage and Aboriginal rights.
· Both times the Panels found that, “Fish Lake (Tez^tan Biny) and Nabas areas are places of unique and special significance for Ts^ilhqot’in cultural identity and heritage and they have occupied Nabas and used Fish Lake for generations.” [p. 4 of New Prosperity Panel Report]
· In both cases the federal government under Stephen Harper found the project had unacceptable impacts on the environment and the Ts^ilhqot’in, and soundly rejected them.
· 1980s-1990s – Junior exploration company finds major ore deposit in Ts^ilhqot’in territory
· 1989 – Xeni Gwet’in issue the Nemiah Aboriginal Preserve Declaration affirming jurisdiction over their lands and putting TML on notice that a major mine proposal was not appropriate for this area.
· 1990 – Xeni Gwet’in begin trapline court action in response to proposed clear-cut logging of its caretaker area of Tsilhqot’in territory.
· 1995 – TML seeks federal and provincial approvals for its “Prosperity” Mine proposal. The federal Department of Fisheries and Oceans (DFO) warns TML and the Province that the destruction to Tez^tan Biny is unacceptable because neither DFO nor the Minister of the Environment could approve the loss of this rare and fish-rich (85,000 rainbow trout) lake.
· 1998 – TML withdraws from environmental permitting applications
· Mid-2000s – TML, under new ownership, new federal and provincial governments, and buoyed metal markets, re-initiates environmental permitting applications
· 2007 - The Xeni Gwet’in trapline case evolves into an Aboriginal title case, leading to the Late Justice Vickers landmark 2007 Ts^ilhqot’in v. B.C. ruling.
· 2009 – After months of negotiation for a joint federal-provincial panel review, the BC EAO unilaterally announce that they will not participate, and instead conduct an in-house environmental review. The Ts^ilhqot’in leaders learned of this via the press.
· 2010 (January) – The BC EAO rushes its review, issuing an approval for the Prosperity Mine ahead of the federal Panel hearings. The Ts^ilhqot’in boycotted the unilateral EAO process and call the approval a “rubber stamp”.
· 2010 (July) –The Prosperity Mine Federal Panel releases its report and finds numerous significant, adverse environmental and cultural effects. The Panel also notes the BC EAO was missing key information as a result of not participating in the hearings.
· 2010 (November) – The federal government rejects the Prosperity Mine Proposal due to the unjustifiable impacts to the environment, and Ts^ilhqot’in culture and rights.
· 2011 – a mere 3 months after the federal rejection, TML announces it is reapplying for a revised mine proposal called the New Prosperity mine. The company says it will no longer drain Teztan Biny, but the plan requires an un-proven and unprecedented whole lake re-circulation scheme. The mine design was based on an alternative reviewed in the first Panel Review, when both TML and Environment Canada stated that it would result in greater longterm environmental risk.
· 2011-13 – The Ts^ilhqot’in Nation objects to the second federal review, arguing that forcing communities to go through an unprecedented second federal EA, and subjecting community members to explain to an entirely new panel the cultural importance of Tez^tan Biny, was unfair and unjustified. Despite these grave concerns, the Ts^ilhqot’in Nation participated in good faith in the second panel review.
· 2012-13 – The majority Federal Conservative government begins dismantling and weakening federal environmental protection laws. The Ts^ilhqot’in fear this is designed to support approval of unacceptable projects such as the New Prosperity proposal.
· 2013 (Oct) – The New Prosperity Panel issues a second, equally scathing report finding numerous significant environmental effects, many of them immitigable.
· 2013 (Nov) – TML begins claiming that the Panel used the “wrong model” for the tailings storage facility, and fileds in Federal Court for judicial review of the panel process and report. The question of the tailings storage facility was just one of numerous significant environmental and cultural impacts identified by the New Prosperity Panel.
· 2014 (Feb) – The majority Conservative government finds that once again, the enormous impacts of the proposed mine cannot be justified, and soundly rejects the project a second time.
· 2014 (March) – TML begins judicial review proceedings of the federal rejection of New Prosperity.
· 2014 (June) – The Supreme Court of Canada, in the Ts^ilhqot’in Nation decision, for the first time ever in Canadian history, recognizes and affirms Aboriginal title on the ground, to approximately 1750 km2. The ruling ends a long history of denial and sets the stage of recognition of Aboriginal title in its full form. Tez^tan Biny lies in an area of proven Aboriginal rights, and nearby the Declared Title Area.
· 2014 (Oct) – Nuu-chah-nulth Master Carver Tim Paul and his family give the Ts^ilhqot’in Nation a totem pole in recognition of the efforts made by the Ts^ilhqot’in to advance recognition of Indigenous peoples, and the strong relationship between the Nuu-chah-nulth and the Ts^ilhqot’in. The pole is raised at Tez^tan Biny to recognize and protect the sacred site.
· 2014 (Oct) – At the totem pole raising ceremony, the Ts^ilhqot’in communities of Xeni Gwet’in and Yunesit’in, with the support of the Ts^ilhqot’in Nation, announce the creation of the Dasiqox Tribal Park, which includes Tez^tan Biny and the surrounding area.
· 2015 – The Final Report of the Truth and Reconciliation Commission of Canada is released. One of its calls to action include calling on “the corporate sector in Canada to adopt the United Nations Declaration on the Rights of Indigenous Peoples”, including a commitment to “meaningful consultation, building respectful relationships, and obtaining the free, prior, and informed consent of Indigenous peoples before proceeding with economic development projects”. (p. 14 of the TRC’s Calls to Action).
· 2015 – The new federal Liberal government commits to implementing the United Nations Declaration on the Rights of Indigenous Peoples, and the Prime Ministers’ mandate letters to cabinet include the statement that, “No relationship is more important to me and to Canada than the one with Indigenous Peoples.”
· 2016 – The Ts^ilhqot’in Nation signs the Nenqay Deni Accord with the Province of British Columbia, a framework agreement to guide further negotiations and that establishes a shared vision, principles and structures to negotiate a comprehensive and lasting reconciliation between the Nation and the Province.
· 2017 – The B.C Liberals approve a major drilling permit to TML for the Tez^tan Biny area on the final day before transition to the new NDP government. The Ts^ilhqot’in Nation challenge this permit.
· 2018 (April) – Tsilhqot’in communities of Yunes^it’in and Xeni Gwet’in release the draft community vision and management goals for Dasiqox Tribal Park to the public for feedback and host public information sessions. Goals for the Tribal Park area include ecosystem protection, sustainable livelihoods and cultural revitalization.
· 2019 - Drilling permit is upheld by the BC Court of Appeal. The BC Court of Appeal recognizes the profound cultural and spiritual importance of the area for the Tsilhqot’in people, and even states that it might have been reasonable to deny the drilling program at this time, but ultimately concludes that it was reasonable to approve the program.
· March 2019 - The Ts^ilhqot’in Nation is seeking an injunction against this permit on March 22, 2019 while it applies for leave from the Supreme Court of Canada to have the appeal heard.
WILLIAMS LAKE, BC - Apr 1, 2019 - The Tŝilhqot’in Nation welcomes an injunction granted today by the B.C. Court of Appeal against an exploration permit issued by British Columbia to Taseko Mines Ltd. (TML) for an extensive drilling program in the Teẑtan Biny (Fish Lake) area.