Update on Taseko’s New Prosperity Proj… wait, that’s still a thing??

When a mine has been denied approval not once, but twice by the federal government, roundly rejected by the Indigenous nation in whose territory it is proposed, when the company’s legal appeals have been unsuccessful, and its provincial approval is one week away from expiring, one might fairly conclude that the project is dead.

That is, unless the project is Taseko’s Prosperity Gold-Copper Mine.

This month, BC extended Taseko’s provincial environmental assessment certificate for a one-year period until January 14, 2022. While BC’s Environmental Assessment Act (EA Act) only allows a proponent to obtain one extension to its Certificate, this is in fact the third extension that Taseko has obtained for Prosperity, by virtue of the BC government passing and amending special regulations to exempt Taseko’s project from that limitation in the EA Act.

Ironically though, the extension of Taseko’s approval might actually be part of a bigger-picture strategy to ensure that it does not proceed with the mine.

If that has you wondering “what the heck is going on?” – you’re not alone. This blog does West Coast’s level best to address some questions about where Taseko’s Prosperity project stands now, acknowledging that the story is complex and in some cases confidential (i.e. West Coast does not have access to all the facts).

What is the backstory here?

A lot has happened since West Coast summarized the status of Taseko’s project in 2017, but here are the Coles notes on the timeline:

  • The BC government approved the Prosperity project in 2010, granting it an environmental assessment certificate.
  • The federal government rejected the Prosperity project in 2010.
  • The Tŝilhqot’in Nation rejected the Prosperity project and also obtained an injunction against Taseko in 2011.
  • Taseko proposed a second iteration of the mine to the federal government – this time called the New Prosperity Mine – which the federal government again rejected in 2014.
  • In 2015 the BC government granted a one-time, five-year extension to Prosperity’s EA certificate (Taseko also separately sought amendments to the certificate).
  • In 2017 the BC government granted new exploratory permits to Taseko, over strenuous Tŝilhqot’in opposition.
  • A dizzying array of legal challenges and appeals occurred over many years, including between Taseko and the Tŝilhqot’in, between Taseko and the federal government, and between Taseko and the BC government. A couple of the most relevant recent decisions are:
    • In 2019, the BC Court of Appeal rejected Taseko’s argument that it could obtain a second extension of its provincial environmental assessment certificate, noting that this was prohibited by the EA Act, and
    • In 2020, the Supreme Court of Canada refused to hear Taseko’s challenge to the federal rejection of New Prosperity, exhausting the company’s last avenue of appeal.
  • In 2020, BC’s Chief Executive Assessment Officer (CEAO) granted a second extension to Prosperity’s EA certificate for one year (until January 14, 2021). The CEAO was only able to do this because the BC Cabinet passed a special regulation explicitly exempting Prosperity from the legal bar against multiple extensions. BC did so based on a joint request from Taseko and the Tŝilhqot’in National Government, to make space for negotiations to resolve their longstanding disputes.
  • In 2021, based on a similar joint request, the CEAO granted a third extension to Prosperity for one more year (until January 14, 2022). This extension was made possible by the BC Cabinet passing an amendment to the special regulation that extended the date of the exemption for another year.

How can BC extend an approval that is required by law to expire?

Section 31(4)(a) of the EA Act says that BC may “extend the deadline specified in the environmental assessment certificate, on one occasion only, for not more than 5 years” (emphasis added).

However, section 77(2)(h) of the EA Act says that the provincial Cabinet may pass regulations “providing that a provision of this Act or of the regulations does not apply to or in respect of a proponent or reviewable project.” BC used this power to pass and then amend regulations exempting Taseko from the provision in the EA Act that prohibits extending a Certificate more than once.

Does this mean the project will be built?

The short answer is no. The CEAO had this to say in reasons for granting an extension until 2022:

The Parties [Taseko and the Tŝilhqot’in Nation] have agreed to a temporary standstill of litigation and other activities in relation to Prosperity at this time. The EAO understands this to effectively remove the possibility of any activities taking place on the ground during the standstill. Considering that the additional 12-month period on the Certificate would allow time for the Parties to continue to engage in a facilitated discussion but not permit Taseko to conduct any work on the ground, I agree with the view of the EAO that the 12-month extension would not result in any new or additional effects, or allow Taseko to substantially start the Prosperity project in that timeframe.

The CEAO’s reasons note elsewhere that Taseko cannot legally proceed with the Prosperity project at this time because it lacks necessary federal and provincial authorizations and permits (and the company has exhausted all appeals of the federal rejection of the project). These facts are important, because section 31(6) of the EA Act says that if “the project has not yet been substantially started by the deadline specified in the environmental assessment certificate or by the end of the period of the extension… the environmental assessment certificate expires.”

In other words, since Taseko cannot “substantially start” its project in the coming year, then its approval is on track to expiry.

What is the purpose of granting an extension when everyone agrees that no work can occur?

The purpose of the extension, according to the CEAO’s reasons, is to continue to “allow for a dialogue, facilitated by the Province, between Taseko and Tŝilhqot’in aimed at exploring a long-term resolution of the issues between them relating to Prosperity.” The provincial government has explicitly recognized in a press release about these negotiations that “All parties involved in the process acknowledge… the opposition of the Tŝilhqot’in Nation to the project.”

Why might the Tŝilhqot’in Nation, which by all indications remains staunchly opposed to Taseko’s project, pursue these negotiations rather than simply letting Taseko’s provincial EA certificate expire? The negotiations are confidential so we cannot say for certain, but one reasonable explanation, which is supported by public statements from Tŝilhqot’in leaders, is that they are attempting to convince Taseko to sell or otherwise relinquish its mineral tenures in their territory.

As things stand, even if the Prosperity EA certificate expires, there is nothing stopping Taseko from proposing yet another mine in Tŝilhqot’in territory, so long as it holds the underlying mineral tenures in provincial law. It is quite possible that Taseko might try to do so – even against the odds of failure – given that the company has already proposed two versions of the Prosperity project, and obtained provincial exploratory permits that suggest it would pursue a third proposal. In the colourful words of Tŝilhqot’in National Government Chair Joe Alphonse: “I never count these guys out… These guys would try to pump oxygen into a dead horse.”

However, if Taseko were to agree to sell or relinquish its tenures through negotiations, then it would no longer be possible for the company to keep trying to build a mine in Tŝilhqot’in territory. In order to participate in such negotiations, it is conceivable Taseko might demand that the pause button be hit on the expiry countdown for its EA certificate. Therefore, ironically, the extension of Taseko’s provincial approval may be a means of facilitating an end to Taseko’s ability to pursue the project.

However, the discussions between Taseko and the Tŝilhqot’in are confidential and West Coast has no special information about them, so this is only speculation based on the legal and factual circumstances.

Does this set a precedent for other projects to circumvent expiry dates on their approval?

The fact that BC has granted not one, but two regulatory exemptions to the mandatory expiry date on Taseko’s EA certificate might have some other companies thinking they should ask for the same thing, if and when their certificate is set to expire. This could be very concerning if it started to open the door to further regulations that give “hall passes” to other proponents to escape the clear requirements of the EA Act, resulting in a lack of transparency, consistency and fairness.

However, in her reasons for decision, the CEAO was at pains to emphasize the uniqueness of the Prosperity scenario, explicitly stating that this decision should not set a precedent for granting similar extensions to other proponents (or again to this proponent):

As the CEAO charged with the administration of the Act, I considered the precedent that could be set by issuing a third extension to the EAC. I considered carefully the implications of making a decision that could be used in in relation to future requests by this and other Certificate holders.

In this regard, I took note of the decision of the former CEAO in January 2020 in which he extended the EAC for a second time. I also considered the implications of further cementing that precedent by granting a third extension. I balanced those considerations with the reality that this is a unique situation. As noted above, the actions of the Certificate holder in engaging with the Tŝilhqot’in Nation support reconciliation. Furthermore, given that the Taseko lacks the necessary federal and provincial authorizations and permits, the project cannot proceed at this time. Additionally, it can reasonably be expected that in order to proceed with the project, the Certificate holder would propose substantial changes to the project and need to undergo a new federal review process. Further assessment under the Act would also be required.

On balance, the uniqueness of this situation (including the existence of a regulation varying a provision of the Act) leads me to conclude that the likelihood of similar future requests coming forward from this holder or other holders for extensions is low.

While it’s impossible to eliminate the risk that this decision could embolden other companies to request regulatory exemptions from the EA Act’s requirements in future, the CEAO’s reasons intentionally throw cold water on this idea. This would make it harder for a proponent to point to Taseko’s exemption from an expiry date to argue that it should receive similar treatment.

Ultimately only time will tell the exact fate of Taseko’s Prosperity Gold-Copper Mine, but even with the recent provincial extension of its EA Certificate, the project’s chances of proceeding are vanishingly slim. What is more likely is that current negotiations are aimed at convincing the company to give up its mineral tenures and leave the area alone.

Top image: Teztan Biny, Tŝilhqot’in Territory (Photo: Jenna Dunsby)

Gavin Smith - Staff Lawyer