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First Nations Injunction Delays Taseko Geotechnical Drilling

On December 2, 2011, the members of the Xeni Gwet’in First Nation Government and the Tsilhqot’in Nation successfully obtained an injunction against Taseko Mines to carry out geotechnical drilling in support of its preparation of an environmental assessment of its revised New Prosperity Mine Project (see Taseko Mines Limited v. Phillips, 2011 BCSC 1675).  The two provincial permits had been issued under the Mines Act and had been the subject of some consultation activity between the Crown and the First Nations prior to its issuance.  The same First Nation has also commenced judicial review proceedings seeking to quash the provincial permits on the basis that the Crown breached its duty to consult.

In British Columbia, the test for interlocutory injunctions is the two-part test established in A.G. British Columbia v. Wale 1986 CanLII 171 (BC CA), (1986), 9 B.C.L.R. (2d) 333 at 345 (C.A.), aff’d 1991 CanLII 109 (SCC), [1991] 1 S.C.R. 62, and described in Canadian Broadcasting Corp. (CBC) v. CKPG Television Ltd. 1992 CanLII 560 (BC CA), (1992), 64 B.C.L.R. (2d) 96 (C.A.) at 101:  "first, the applicant must satisfy the court that there is a fair question to be tried as to the existence of the right which he alleges and a breach thereof, actual or reasonably apprehended.  Second, he must establish that the balance of convenience favours the granting of an injunction."

Applying the test, Mr. Justice Grauer concluded that the applicants had established a fair question to be tried, that the balance of convenience weighed in favour of the applicants for the injunction, and that it was in the public interest to grant the injunction: “in circumstances such as these, reconciliation of the competing interests is achieved through the only process available, being appropriate consultation and accommodation.  Those duties, of course, attach to the Crown.  Nevertheless, from the perspective of Taseko, that process is a cost and condition of doing business mandated by the historical and constitutional imperatives that are at once the glory and the burden of our nation.  Only by upholding the process can reconciliation be promoted; without reconciliation, nothing is accomplished.  This interest, in my view, is at risk should the injunction be denied, and weighs heavily in the balance of convenience.”

In the application, the Crown and Taseko argued that, given the restricted nature of the work authorized by the permits, the required consultation fell at the low end of the spectrum.  The First Nation argued that the required consultation fell to the high end, given the cumulative impact of years of activity at the site as well as the potential that the information will be used to support the construction of a production mine with potentially significant impacts.  Mr. Justice Grauer indicated that qquestions such as the appropriate focus, and the scope of consultation required, must be determined at the hearing of the petition for judicial review.

In the result, Justice Grauer awarded the injunction, which is to remain in effect for up to 90 days, unless extended by the Court, and in any event for no longer than is required for the judicial review application to be heard.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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