Supreme Court rejects Tsilhqot’in appeal on New Prosperity mine

Geotechnical work can proceed, but Taseko still doesn’t have federal approval for copper mine

Tsilhqot'in claim Taseko's New Prosperity mine is within their traditional territory and does not have their permission. |Archives

The Supreme Court of Canada has dismissed an appeal by the Tsilhqot’in First Nation over a drilling permit issued by the provincial government to Taseko Mines (TSX:TKO).

Earlier, in April, the Supreme Court of Canada had granted an interim injunction against any drilling activities in the area around Fish Lake – the area where Taseko wants to build the New Prosperity copper mine.

But the court has now dismissed leave to appeal a BC Court of Appeal ruling that upheld a drilling permit issued by the provincial government to allow for geotechnical work needed as part of the provincial environmental certificate that was issued to the company.

The problem for Taseko is that the federal Canadian Environmental Assessment Agency (CEAA) has twice refused to issue a federal environmental certificate. Taseko is still fighting the CEAA’s refusal at the federal court level.

But while that court challenge plays out, the provincial environmental certificate had a sunset clause that required some geotechnical work to be done. The provincial certificate had required the mine project to be substantially started by 2020.

So when Taseko applied to the Ministry of Energy, Mines and Petroleum Resources for a drilling permit to carry out some of the required work, the permit was granted, since it has provincial approval.

The Tsilhqot’in challenged that decision, but the BC Supreme Court upheld the provincial permit. The Tsilhqot’in then appealed that decision, but the BC Court of Appeal upheld the lower court decision, and now the highest court in the land has essentially upheld the Appeal Court decision by refusing the Tsilhqot’in’s leave to appeal.

Without the federal environmental certificate, however, the New Prosperity mine cannot be built, so any geotechnical work done by Taseko might be a waste of money.

According to the Tsilhqot’in, the provincial permit allows Taseko to clear 76 kilometres of new or modified road and trail, and drill up to 122 test holes near the Fish Lake area.

It is not within title area that the Supreme Court of Canada affirmed in a landmark 2014 decision, but the Tsilhqot'in say the 2014 decision affirmed they have rights in the area with respect to activities like hunting and trapping, and that the mine would infringe on those rights.

Having exhausted all legal avenues with respect to the drilling permit, the Tsilhqot’in are now calling on the provincial government to intercede, and cites the NDP government’s commitment to adhere to the United Nations Declaration on the Rights of Indigenous People.

“We call on Premier Horgan and the Government of British Columbia to do the right thing and live up to the commitments it has made to Indigenous peoples,” Joe Alphonse, tribal chairman of the Tŝilhqot’in National Government, said in a press release.

Taseko was not immediately available to comment on the Supreme Court decision and its plans for drilling work, now that it has permission from the highest court to proceed.