British Columbia Court Of Appeal Reaffirms Duty To Consult Not A Duty To Agree

Introduction

In a unanimous decision, William v. British Columbia (Attorney General), 2019 BCCA 74, the British Columbia Court of Appeal affirmed that a proposed exploratory drilling program associated with the New Prosperity Mine could proceed after its approval by the Provincial government was found to be reasonable. In dismissing the appeal, the Court commented that not accepting the position of an Indigenous group who holds an honest belief that a project should not proceed does not mean that the process of consultation is necessarily inadequate or that the Crown did not act honourably in reaching a decision. Sometimes parties are unable to resolve their differences and work towards reconciliation because of fundamental disagreements.

Background

Taseko Mines Limited ("Taseko") holds a mineral lease and related mineral claims in an area 125 kilometres southwest of Williams Lake, British Columbia. The area falls within a portion of the traditional territory of the Tsilhqot'in Nation ("Tsilhqot'in") in which Aboriginal hunting, trapping and trade rights (but not Aboriginal title) have been proven. The Tsilhqot'in continue to conduct a number of activities in the area, beyond hunting and trapping, and claim that the area is increasingly critical to maintain their culture and exercise their rights.

For over a decade, Taseko has actively pursued the development of a mine in Tsilhqot'in traditional territory which would produce an estimated 11 million ounces of gold and 4 billion pounds of copper from the Prosperity deposit. The mine, as originally proposed, required separate federal and provincial environmental assessments. While the Province of British Columbia (the "Province") approved the project, the Federal Government did not; concluding that it would have significant adverse environmental effects in the area.

After adjusting the design of the original project (the "New Prosperity Project"), Taseko re-applied for federal approval, but was ultimately rejected for a second time. Taseko filed applications for judicial review challenging the findings and decision in relation to the second rejection. [1] Both applications were dismissed, but have been appealed to Federal Court of Appeal and await hearing. As it stands, the provincial Environmental Assessment ("EA") Certificate cannot be extended any further and will expire in January 2020 if work is not substantially started by that date.

These proceedings concern Taseko's preparations for a...