Federal Court Confirms Minimal To No Duty Of Procedural Fairness Owed To Proponents During Post-Hearing Crown Consultations

Background

On December 5, 2017, the Federal Court released two decisions respecting applications for judicial review brought by Taseko Mines Limited (Taseko) for the New Prosperity mine project (the Project). The Minister of the Environment (the Minister) had previously concluded that the Project was likely to cause significant adverse environmental effects, and the Governor in Council decided that the effects were not justified in the circumstances.

The first application was brought in response to the technical findings of and procedural fairness afforded by the Joint Review Panel (JRP). The second application was brought in response to the constitutionality of certain provisions of the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and the procedural fairness owed to Taseko during the Minister's post-hearing consultation with the Tsilhqot'in National Government (TNG). The Court dismissed both applications for judicial review.

Taseko Mines Limited v Canada (Environment), 2017 FC 1099

In Taseko Mines Limited v Canada (Environment), 2017 FC 1099, (Taseko 1) Taseko took issue with matters of procedural fairness and the JRP conclusions regarding the issue of toxic water seepage.

The Court found that the proponent was owed a high degree of procedural fairness during the review process, but that the proponent had been afforded the procedural fairness owed. The Court then focused primarily on the technical conclusions of the JRP challenged by Taseko, which it found to be reasonable in the circumstances.

The Court also found that the JRP's adherence to the precautionary principle was reasonable in the circumstances as Taseko's approach to adaptive management did not provide the necessary information on environmental effects and mitigations. The Court did recognize the possibility of adaptive management in review proceedings, but held that reliance on Taseko's vague adaptive management measures - essentially leaving such decisions until a later stage - had the potential to call into question the entire JRP process.

Taseko Mines Limited v Canada (Environment), 2017 FC 1100

In Taseko Mines Limited v Canada (Environment), 2017 FC 1100, (Taseko 2), Taseko challenged the Minister's and the federal cabinet's decisions that the Project was likely to cause significant adverse environmental effects and that the Project should not proceed. Taseko asserted it had not been afforded adequate procedural fairness and that the provisions of CEAA 2012...