Canadian First Nations dig in against Prosperity & Coal

Published by MAC on 2011-11-14
Source: Globe and Mail, statement, Vancouver Sun

Prosperity Redux: a disappointing decision for the environment, First Nations and the EA process

West Coast Environmental Law statement

7 November 2011

Today, November 7, 2011, the Canadian Environmental Assessment Agency (the Agency) announced that Taseko Mine Ltd.'s gold and copper mine proposal, New Prosperity, will undergo a federal environmental assessment.

As we have explained, we do not think that the New Prosperity proposal is anything more than a re-packaging of the previously assessed and vehemently rejected option two of the original Prosperity Mine proposal and thus we are disappointed to learn that additional time and resources will be spent further assessing this proposed project.

One year ago, on November 2, 2010 the federal government rejected the Prosperity proposal and determined that all the alternatives examined were also insufficient in their ability to protect the environment, mitigate impacts, and minimally infringe Aboriginal rights and title in the proposed mine area.

Since then, opposition to the proposal, now pitched as New Prosperity, has only grown: the Tsilqot'in National Government, the Union of BC Indian Chiefs (UBCIC) as well as First Nations across Canada, and at least ten environmental and legal organizations remain firmly opposed to the proposal put forward by Taseko.

The provincial government continues to operate as though New Prosperity is already approved and, in a demonstration of its lack of respect for the federal process, just last week issued licences to Taseko that permit the building of 23.5 kilometers of road, 59 test pits and 18 drill holes.

Two weeks ago, Ms. Feldman, the president of the Agency told the federal parliamentary Standing Committee on Environment and Sustainable Development (at lines 1205-1210), which is conducting a mandatory review of the Canadian Environmental Assessment Act, that Canada is faced with roughly $500 billion in potential new investment in natural resource projects in the coming years, while the Agency is faced with up to a 43% reduction in its budget (depending on decisions made about ‘sunsetting funds' made in the 2012 budget).

In light of all the above, we think there are far more efficient and effective ways to allocate the limited resources that the Agency has been left with than re-assessing a project that has already been rejected.

However, if the Agency must go ahead with another assessment, we do support that assessment being undertaken at the review panel level. The fact that there is so much broad public and First Nations opposition to it, and the fact that the environmental impacts are still very significant and adverse to the affected lakes and the surrounding ecosystem has led the Responsible Authorities and the Minister of Environment to rightfully refer the New Prosperity proposal to a review panel under the Canadian Environmental Assessment Act.

It will only makes sense, in fact, that the same review panel that considered the original Prosperity Mine be reappointed. The members of that panel are already familiar with the project, and it would be best placed to determine, quickly, whether Taseko has actually addressed the concerns with the original proposal or whether, as we believe, this is essentially a re-packaged version of an already rejected option. Indeed, section 24 of the Canadian Environmental Assessment Act requires that appropriate information from previous environmental assessments must be used - with necessary adjustments - in subsequent assessments.

This requirement applies directly to comprehensive study and screening level environmental assessments that had been previously successfully assessed, but there are good policy reasons to extend the use of prior information from panel reports to subsequent panel reviews as well.

A review panel process with full public hearings and full funding available for public participants and First Nations is the only way to ensure that any assessment of New Prosperity is done comprehensively and in a transparent manner. We think the same panel members should be re-appointed to avoid duplication and relevant parts of the first panel report should be adopted where possible.

If the federal government insists on re-assessing this proposal, we say it must be done in a manner that honours the assessment process and fully weighs the serious and irreversible environmental and cultural impacts that the New Prosperity project contemplates.

By Rachel Forbes, Staff Lawyer

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Tsilhqot'in Angry and Alarmed by Decision to Review dead Prosperity Mine project

Pursuing project that cannot be accepted is pointless, costly and divisive

Tsilhqot'in Nation statement

7 November 2011

WILLIAMS LAKE, BC - The Tsilhqot'in Nation reacted today with anger, frustration, bewilderment and disappointment to the announcement that the already rejected Prosperity Mine proposal will proceed to another review.

"This is a wrong decision that makes no sense to us and raises serious concerns, but at least the Minister of Environment recognizes these must be addressed through a public review panel that ensures full transparency and accountability," Tsilhqot'in National Government Tribal Chair Chief Joe Alphonse said.

The Tsilhqot'in Nation is also extremely alarmed that the proponent company, Taseko Mines Ltd (TML), will now try to use prematurely granted BC exploration permits to further damage the Teztan Biny (Fish Lake) area by constructing 24 Km's of roads and drill new holes.

"The cumulative impacts from the proposed road building and drilling in this area of proven cultural and spiritual importance is a serious threat to our Aboriginal rights, which have been affirmed by B.C.'s courts in the Vickers decision," said Chief Marilyn Baptiste of the Xeni Gwet'in First Nation. "Any further destruction would be pointless as the federal government cannot possibly approve this proposal."

The Tsilhqot'in people are angry and frustrated that they will be dragged through another costly, foolish and divisive process when the facts show this resubmission is just a repackaged version of a previous option that has already been ruled out as worse than the original plan by government and TML experts.*

Chief Alphonse said: "To avoid duplication and reduce costs, CEAA must re-appoint the same review panel members. They spent months hearing and reviewing the evidence for a report that then-environment minister Jim Prentice called 'scathing' and 'probably the most condemning I have ever read.'"

Chief Baptiste added: "The government is still required under the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples to reject the proposal to protect our rights. And there is nothing new here that would allow the Department of Fisheries and Oceans to reverse the total opposition it has given to this mining effort since 1995.

"One has to wonder if Taseko Mines Ltd - which has lobbyists registered with three Ottawa firms and a very close association with a company that recently hired a former Regional Director for CEAA - are trying to rewrite the rules. So the government must allow a public, transparent review by the same panel and one that protects our Aboriginal rights and title."

Chief Alphonse said: "The mine proponents told us last year, when they expected the project to be approved, that we should shut up and accept it. Well, it was rejected and now they should take their own advice and accept this project is a lost cause. Canada's First Nations are united against this resubmission.

"At stake are the credibility of the EA process and the honour of the Crown. We would all rather be working with government and industry to find a better way forward for mining in Canada, but this poster child for all that is wrong with the system continues to stand in the way."

Ten facts that show why resubmitted Prosperity Mine proposal cannot be approved

The CEAA review panel process was very different from the BC EAO rubber-stamp decision. Its report found immitigable, devastating impacts to the local fish stocks and endangered grizzly populations, and to the existing and future rights of the Tsilhqot'in and its youth. Then Environment Minister Jim Prentice described the report's findings as "scathing" and "probably the most condemning I have ever read."

The company knows its new option is worse than its first plan. TML's V.P. Corporate Affairs, Brian Battison, was clear in his Mar. 22, 2010, opening presentation to the CEAA hearings, when he stated: "Developing Prosperity means draining Fish Lake. We wish it were otherwise. We searched hard for a different way. A way to retain the lake and have the mine. But there is no viable alternative. The lake and the deposit sit side by side. It is not possible to have one without the loss of the other."

The point was emphasised by TML's VP of engineering, Scott Jones, who stated: "What happens to the water quality in Fish Lake, if you try and preserve that body of water with the tailings facility right up against it, is that over time the water quality in Fish Lake will become equivalent to the water quality in the pore water of the tailings facility, particularly when it's close."

This proposal does not address the issues that led to the rejection of the first bid last year. Fish Lake will be affected by the toxic waste and eventually die, and it will be surrounded by a massive open pit mine and related infrastructure for decades. The Tsilhqot'in people will not have access to their spiritual place, and the area will never be returned to the current pristine state.

It is not even new. It is "Mine Development Plan 2." TML states on page 20 of its project submission: "Option 2 is the basis for the New Prosperity design ...The concepts that lead to the configuration of MDP Option 2 have been utilized to develop the project description currently being proposed."

This option was looked at and rejected last year by the company, Environment Canada and the CEAA review panel. For example, page 65 of the review report states: "The Panel agrees with the observations made by Taseko and Environment Canada that Mine Development Plans 1 and 2 would result in greater long-term environmental risk than the preferred alternative."

The new $300 million in proposed spending is to cover the costs of relocating mine waste a little further away. There is nothing in the 'new' plan to mitigate all the environmental impacts identified in the previous assessment. TML states in its economic statement: "The new development design, predicated on higher long term prices for both copper and gold, would result in a direct increase in capital costs of $200 million to purchase additional mining equipment to relocate the tailings dam and to move the mine waste around Fish Lake to new locations. This redesign also adds $100 million in direct extra operating costs over the 20-year mine life to accomplish that task." In fact, this new spending is actually $37 million less than the company said last year it would have to spend just to go with the option that it and the review panel agreed would be worse for the environment.

The federal government is required under the Constitution to protect First Nations, which have been found to be under serious threat in this case, and is internationally committed to do so under the United Nations Declaration on the Rights of Indigenous Peoples. These duties are every bit as clear regarding this resubmitted proposal.

Approving this mine would show the Environmental Assessment process is meaningless, and would demonstrate that governments are ignoring their obligations - as the Assembly of First Nations national chiefs-in-assembly made this crystal clear this summer in their resolution of support for the Tsilhqot'in.

The federal Department of Fisheries and Oceans has opposed this project since it was first raised in 1995. It soundly rejected it again last year. It has no reason to support it now. Nor does Environment Canada, which, as the CEAA report noted last year, also found option 2 to be worse than the original bid.

There are many other more worthy projects to be pursued - the vast majority of which, if not all will require working with aboriginal communities. Natural Resources Canada estimates there is $350 billion-$500 billion worth of such potential projects in Canada. Governments, industry and investors do not need to go backwards by pushing this confrontational proposal and rebuffing efforts by First Nations to find a way to create a better mining system that would benefit everyone in the long run.

For further information:

Media Contacts: JP Laplante - 250-267-3759 or Sean Durkan - 613-851-2151

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One-year review of New Prosperity project ordered

By Peter O'Neil

Vancouver Sun

8 November 2011

OTTAWA - Environment Minister Peter Kent triggered a chorus of criticism Monday by ordering a new environmental review of Taseko Mines Ltd's $1.5-billion "New Prosperity" gold and copper mine in the province's Central Interior.

"Our government always balances environmental concerns with Canadians' top priority - jobs and the economy," Kent said in a statement.

"This environmental assessment will look at new aspects of the proposal while incorporating the analysis from the previous process."

Kent, with his authority under the Canadian Environmental Assessment Act, directed the CEAA to establish a panel to review Taseko's revised proposal.

A year ago, the CEAA ruled that the company's initial mine proposal would have adversely impacted the environment and native land claims in the region.

Kent has given CEAA a year to complete the process, which will include public hearings.

The panel "will thoroughly assess whether the proposal addresses the environmental effects identified in the environmental assessment of the original Prosperity project," the agency said in a news release.

The Harper government accepted last year a CEAA panel review which turned down Taseko's proposal to drain the trout-rich Fish Lake, about 125 kilometres southwest of Williams Lake, in order to use it as a tailings storage area.

The company has come back with a proposal to spend an additional $300 million to build a tailings facility two kilometres upstream from Fish Lake, though critics say it's essentially the same proposal that was considered unacceptable by both the company and the panel.

Brian Battison, Taseko's vice-president of corporate affairs welcomed Monday's decision on the project's revised design.

"We would characterize it as a positive step forward," Battison said in an interview, "and we hope and anticipate that it will lead to the ultimate federal approval that we seek."

And while Kent's order drew immediate denunciations by the New Democratic Party, native groups and environmental organizations, Battison said the mine proposal enjoys broad support within communities in the region.

"You don't hear a lot about the people who want the project or are in favour of the project," he added.

The provincial NDP said pushing through a mining project over the objections of first nations "will create an atmosphere of distrust and conflict" that will increase uncertainty in the province.

"If we want to do business on the land base we need to build a strong relationship of trust and partnership with first nations," said NDP mining critic Doug Donaldson.

Federal NDP fisheries critic Fin Donnelly said the new panel is a waste of time and tax dollars.

The Tsilhqot'in First Nation issued a statement expressing "anger, frustration, bewilderment and disappointment," though the release also expressed some relief that a full panel process is being created to ensure public input.

"At least the minister of the environment recognizes these must be addressed through a public review panel that ensures full transparency and accountability," said Tsilhqot'in National Government Tribal Chair Chief Joe Alphonse.

The original proposal would have drained Fish Lake, which according to the Sierra Club of B.C. is home to an estimated 80,000 rainbow trout and was once featured on a B.C. tourism brochure.

But the Sierra Club said the new proposal will surround the lake with an open pit mine, rendering the area unusable for up to 33 years.

"This repackaged proposal would be even more environmentally destructive than the original proposal, according to Taseko's own statements," said Sierra Club BC Executive Director George Heyman.

"There is something seriously wrong with our assessment process when a company like Taseko can simply re-submit a mining proposal after it has been soundly rejected."

Marilyn Baptiste, chief of the Xeni Gwet'in band of the Tsilhqot'in First Nation, said Monday she believes politics influenced the decision.

Both Prime Minister Stephen Harper and B.C. Premier Christy Clark have promoted mining as a way for Canada to defy the global economic downdraft.

Taseko's lobbyists have met with senior federal officials to stress the benefits outlined in a company report arguing that the mine would generate 71,000 jobs and increase federal and B.C. government tax revenues by almost $10 billion between the 2013 construction launch to its 2036 mine closure.

And company officials say Taseko will take steps to mitigate the risk posed by the newly-located tailings pond, to be located about two kilometres upstream from Fish Lake.

Critics have cited testimony from the CEAA hearings last March that included Battison's declaration that the original proposal to drain Fish Lake, which was ultimately rejected by the agency, was the only possible option.

"Developing Prosperity means draining Fish Lake. We wish it were otherwise," Battison told the panel hearing in 2010.

"We searched hard for a different way, a way to retain the lake and have the mine. But there is no viable alternative. The lake and the deposit sit side by side. It is not possible to have one without the loss of the other."

They also cite the CEAA report which said the panel agrees with observations by both the company and Environment Canada that the option to have the tailings pond upstream from Fish Lake "would result in greater long-term environmental risk than the preferred alternative."

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Tsilhqot'in Launch Court Case Against Exploration Approvals for "New" Prosperity Project

Tsilhqot'in Nation Press Release

11 November 2011

WILLIAMS LAKE, BC. : The Tsilhqot'in Nation has launched a court challenge asking the B.C. Supreme Court to invalidate or suspend approvals granted by British Columbia to Taseko Mines Limited for extensive drilling, excavation, timber clearing, road construction and other exploratory work for its controversial "New" Prosperity Mine.

The Tsilhqot'in Nation and the Xeni Gwet'in (one of the Tsilhqot'in communities closest to the proposed mine) filed a petition for judicial review of the approvals yesterday.

The petition alleges that Crown officials breached their duties to consult and accommodate the Tsilhqot'in and failed to extend even "the most basic courtesies of consultation", such as notice that approvals for drilling and road construction were granted. Six weeks after the approval for this work, the Tsilhqot'in are still waiting for a rationale for the decision.

Xeni Gwet'in Chief Marilyn Baptiste said that the Tsilhqot'in consider the affected area "a cultural school, a place for social gatherings, a 'grocery store' for country foods, and a place for ceremony". Last November, the Federal Government rejected the original Prosperity Mine proposal, based on a scathing report by an independent federal panel highlighting a host of environmental and cultural impacts, including "high magnitude" and "irreversible" impacts on Tsilhqot'in traditional use in this area of "unique and special significance to the Tsilhqot'in".

"This company went through years of exploration for its failed first bid," said Chief Baptiste, "Now they want to go back in there and drill more holes, dig nearly 60 test pits and clear over 23 kilometres of road, all for this new mine proposal that the company knows - and has publicly stated - is worse for the environment that its preferred option. We are appealing to the court to uphold the principles of fairness and justice."

"We're talking about serious impacts for our rights and our culture," said Chief Joe Alphonse, Tribal Chair of the Tsilhqot'in National Government. "The Province refused to acknowledge these impacts, no matter what we say; it is more concerned with handing over approvals. We've gone to court before, we've stood in front of the federal panel, we have proven over and over again how important these lands are to our people and our culture - but the Province never seems to get the message".

Their lawyer, Jay Nelson, said: "it's alarming that the Province didn't take basic steps like notifying the Tsilhqot'in when it approved the drilling and road construction in this area. It handed the company this approval six weeks ago and the Tsilhqot'in are still waiting for a rationale for the decision. We all know this is a high conflict situation, and this kind of disrespect only throws fuel on the fire".

Media contacts: Jay Nelson (Woodward and Company LLP) 778.678.4699.
Chief Joe Alphonse, TNG Tribal Chair & Chief of Tl'etinqox-t'in
(250-305-8282 - Messages Only)

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Ten facts that show why resubmitted Prosperity Mine proposal cannot be approved:

1. The CEAA review panel process was very different from the BC EAO rubber-stamp decision. Its report found immitigable, devastating impacts to the local fish stocks and endangered grizzly populations, and to the existing and future rights of the Tsilhqot'in and its youth. Then Environment Minister Jim Prentice described the report's findings as "scathing" and "probably the most condemning I have ever read."

2. The company knows its new option is worse than its first plan. TML's V.P. Corporate Affairs, Brian Battison, was clear in his Mar. 22, 2010, opening presentation to the CEAA hearings, when he stated: "Developing Prosperity means draining Fish Lake. We wish it were otherwise. We searched hard for a different way. A way to retain the lake and have the mine. But there is no viable alternative. The lake and the deposit sit side by side. It is not possible to have one without the loss of the other."

3. The point was emphasised by TML's VP of engineering, Scott Jones, who stated: "What happens to the water quality in Fish Lake, if you try and preserve that body of water with the tailings facility right up against it, is that over time the water quality in Fish Lake will become equivalent to the water quality in the pore water of the tailings facility, particularly when it's close."

4. This proposal does not address the issues that led to the rejection of the first bid last year. Fish Lake will be affected by the toxic waste and eventually die, and it will be surrounded by a massive open pit mine and related infrastructure for decades. The Tsilhqot'in people will not have access to their spiritual place, and the area will never be returned to the current pristine state.

It is not even new. It is "Mine Development Plan 2." TML states on page 20 of its project submission: "Option 2 is the basis for the New Prosperity design .The concepts that lead to the configuration of MDP Option 2 have been utilized to develop the project description currently being proposed."

5. This option was looked at and rejected last year by the company, Environment Canada and the CEAA review panel. For example, page 65 of the review report states: "The Panel agrees with the observations made by Taseko and Environment Canada that Mine Development Plans 1 and 2 would result in greater long-term environmental risk than the preferred alternative."

6. The new $300 million in proposed spending is to cover the costs of relocating mine waste a little further away. There is nothing in the 'new' plan to mitigate all the environmental impacts identified in the previous assessment.

TML states in its economic statement: "The new development design, predicated on higher long term prices for both copper and gold, would result in a direct increase in capital costs of $200 million to purchase additional mining equipment to relocate the tailings dam and to move the mine waste around Fish Lake to new locations. This redesign also adds $100 million in direct extra operating costs over the 20-year mine life to accomplish that task."

In fact, this new spending is actually $37 million less than the company said last year it would have to spend just to go with the option that it and the review panel agreed would be worse for the environment.

7. The federal government is required under the Constitution to protect First Nations, which have been found to be under serious threat in this case, and is internationally committed to do so under the United Nations Declaration on the Rights of Indigenous Peoples. These duties are every bit as clear regarding this resubmitted proposal.

8. Approving this mine would show the Environmental Assessment process is meaningless, and would demonstrate that governments are ignoring their obligations - as the Assembly of First Nations national chiefs-in-assembly made this crystal clear this summer in their resolution of support for the Tsilhqot'in.

9. The federal Department of Fisheries and Oceans has opposed this project since it was first raised in 1995. It soundly rejected it again last year. It has no reason to support it now. Nor does Environment Canada, which, as the CEAA report noted last year, also found option 2 to be worse than the original bid.

10. There are many other more worthy projects to be pursued - the vast majority of which, if not all will require working with aboriginal communities. Natural Resources Canada estimates there is $350 billion-$500 billion worth of such potential projects in Canada. Governments, industry and investors do not need to go backwards by pushing this confrontational proposal and rebuffing efforts by First Nations to find a way to create a better mining system that would benefit everyone in the long run.

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Native community resists Clark's coal-mine cajoling

By Justine Hunter Victoria

Globe and Mail

10 November 2011 

On Dec. 22, 1854, the Snuneymuxw people signed a treaty that provided them with 668 blankets. In exchange, British settlers got to mine the rich coal seam in their territory.

The treaty - one of just a handful ever signed in British Columbia - was made only because the governor of the fledgling colony of Vancouver Island really wanted to get his hands on that fuel.

Now coal is a hot commodity again and B.C. Premier Christy Clark is seeking to cajole another first nation to agree to its extraction.

This week, Ms. Clark announced during her China trade mission that she has secured $860-million in financing to build a coal mine in northeast B.C. which will eventually create 4,800 jobs.

What she didn't mention is the hitch: The proposed Gething coal mine would be built in the West Moberly First Nation's territory. The province knows full well that the native band - coincidentally, another one of the small number with a treaty in B.C. - opposes the plan.

The Premier glossed over the obstacle this week, saying it's just a question of settling on a price.

"A big part of the benefit will accrue to first nations," she explained to reporters in a conference call from Beijing. "It's just a question of negotiating how much."

Ms. Clark is in China to assure investors that B.C. is a safe, stable place to do business. Uncertainty over resource development is the last thing she wants to talk about. Construction will begin at the Gething mine in two years, she asserted, once the environmental assessment, permits and first nations and community consultation are complete.

But consultation with the West Moberly is going nowhere, said Chief Roland Willson.

"No ifs, ands or buts," he said in an interview this week. "The mine will have to find another place to go."

The West Moberly are not anti-development. There are five active coal mines in their territory. Including the Gething proposal, there are 28 applications for development on their lands - including mines, pipelines and power projects. Some they'll support, others they will not.

But the Premier is eyeing a coal seam right next to the band's summer camp - one of the few places left where the West Moberly people can continue traditional hunting, fishing and trapping unhindered by truckloads of coal rumbling past. "We have to have that [protected area] to carry on our culture," Mr. Willson said. "The impacts of this mine to our way of life cannot be mitigated, so our only option is to say no."

The province reassures the business community that it has a duty to consult with first nations, but that those communities have no veto over development decisions. However, the province is no longer bartering for blankets - B.C.'s first nations have formed their own mining council to assist their people in negotiating directly with businesses to ensure resources don't leave their territories without them gaining a share of the benefits.

In some cases, partnership won't be enough. Across the province, first nations are outright opposed to some developments - such as the New Prosperity mine and the Jumbo Glacier resort. This is where the Premier's ambitions are heading for conflict.

Nearly 160 years after his ancestors marked an X on an agreement to give the Crown access to their coal, the current chief of the Snuneymuxw, Douglas White, is still fighting with the provincial government to recognize his people's aboriginal rights and title.

James Douglas, the first governor of the colony, pursued treaties to get resources out of the ground without conflict. But he abandoned that path when the treaty process proved to be costly. Ms. Clark, who inherited a province that is still mostly subject to unsettled claims of aboriginal rights and title, wants to focus on job creation ahead of treaties.

Mr. White is dubious about the Premier's plan, warning that pushing economic development without first nations' approval won't help Ms. Clark realize her jobs agenda.

"This is not relationship-building, it's about meeting minimal legal standards," he said. "We are not creating the level of certainty for the province's potential to be realized."

Ms. Clark can certainly find many projects in B.C. where first nations are willing to step up and take a partnership role. Is she willing to press ahead with those projects where the answer is no?