Meetings between federal officials and opponents of the proposed New Prosperity mine in the Cariboo may have violated the rights of the company pushing for the project, according to one legal expert.
Thompson Rivers University law professor Lorne Neudorf said claims by Taseko Mines that the federal government may not have fulfilled all of its obligations could have merit.
“What we have in administrative law is the duty of the decision maker to hear the other side,” Neudorf said. “The idea is if there is some information that may be contentious or that may affect the decision-making process, you should let the opposing party at least hear what that information is and put together a response to that information - it wouldn’t be fair otherwise.”
In a judicial review filed last week, Taskeo alleged that separate meetings between mine opponents and federal Environment Minister Leona Aglukkaq as well as Canadian Environmental Assessment Agency (CEAA) senior executives violated the company’s right to procedural fairness because they didn’t get a chance to respond.
The meetings took place after a CEAA review panel had concluded public hearings, but before Aglukkaq determined that the open pit copper and gold mine proposed to be built near Fish Lake could cause significant adverse environmental effects and her cabinet colleagues ruled those adverse effects could not be justified.
The meetings in question, primarily with First Nations leaders from the Cariboo who oppose the project, were documented on social media by some of the participants.
Neudorf said although the specific environmental assessment legislation gives Aglukkaq broad powers in how she goes about making her decision on whether or not the mine poses significant adverse environmental effects, common law principles of procedural fairness still apply.
“It’s pretty easy to ask someone to respond to new information, it doesn’t take much effort,” he said. “In fact the mining company seems very eager to respond to anything because they obviously have a lot invested in this project.”
The government hasn’t filed its response to Taseko’s claims, but Neudorf said one possible defence they could employ is telling the court that the meetings with mine opponents didn’t contain substantive information and didn’t influence the eventual decision.
Taseko has filed two judicial review requests with the federal court regarding the mine.
The first deals with the report produced by the CEAA panel which identified some significant environmental effects. Taseko contends the process wasn’t fair and that the panel relied on faulty evidence to reach its conclusion.
The second judicial review is centered around the decision by Aglukkaq and cabinet that the significant adverse effects raised by the panel were real and couldn’t be justified.
It’s expected both cases will be heard separately.
While Taseko didn’t get the chance to meet with Aglukkaq or other federal officials after the panel concluded its public hearings last summer, one high-profile mine supporter did. Provincial Energy and Mines Minister Bill Bennett travelled to Ottawa in January and met with a handful of cabinet ministers not including Aglukkaq to make his case for the mine.
But Neudorf said since Bennett wasn’t meeting with the government on behalf of Taseko, it doesn’t absolve the federal government from its obligations to give the company a chance to respond.
“The provincial ministry in B.C. is not [Taseko’s] delegate and not their advocate and they’re not giving them instructions,” he said. “The reality is the [B.C.] government has their own reasons for supporting the mine, but that doesn’t mean their interests are entirely aligned [with those of Taseko].”
Neudorf cautioned that even if Taseko wins at the judicial review phase, that doesn’t mean the mine will go ahead. If a judge determines that procedural fairness was violated, the remedy would be to send it back to Aglukkaq and cabinet to reconsider their decision. That reconsideration could still result in the mine getting rejected.
Neudorf added that Taseko’s argument that the federal cabinet’s decision to reject the mine without giving substantive reasons why it reached the decision could also have merit.
“The courts don’t impose that in every case, they look at it on a case-by-case basis and they make a contextualized assessment,” he said. “I would say the trend in the law is generally reasons will be imposed, especially if there’s something very significant at stake.”
Taseko is also seeking to have some sections of the environmental assessment legislation declared unconstitutional, which Neudorf described as the “nuclear option.”
“The constitutional argument is a pretty tough argument to make and seems unlikely to succeed,” he said.
