Taseko mines announced yesterday (Feb 21st) that it has resubmitted a revised proposal for the controversial Prosperity Mine to the federal government. According to Taseko:
The proposal greatly reduces environmental impacts, preserves Fish Lake and its aquatics, and enables all mine operations and related components to be contained within one single watershed, a beneficial feature of the original design. …
Given that the project re-design retains much of the original plan, Taseko is confident that Government agencies and departments will be able to rely on significant portions of the already completed environmental assessments to inform the new assessment and that we anticipate the scope of that assessment to be focused on only what has changed.
To recap – the Prosperity Mine, proposed by Taseko Mining Ltd., would be a copper and gold mine. The main deposit in question is located under Fish Lake, or Tetzan Biny, a lake that is home to an estimated 85,000 trout and is of great cultural importance to the Tsilhqot’in First Nation. (Teztan Biny is part of the Tsilhqot’in homeland and the Taseko River / Fraser River watershed. ) The Prosperity Mine, as originally proposed, would have destroyed Tetzan Biny, the nearby (but smaller) Little Fish Lake/Y’anah Biny, and generally caused great chaos.
After extensive hearings and months of reviewing technical evidence, an environmental assessment panel established by the federal government found that there would be a range of environmental harms associated with the proposed project. On the basis of this assessment the federal government rejected the proposed mine.
Taseko’s new proposal raises a number of legal and practical questions. How can Taseko have failed to propose a design that would have prevented the destruction of Fish Lake during the months of deliberations by the environmental assessment panel? Can the company just re-open an already completed environmental assessment process at this late date with a new design that it never raised previously?
Questions about the Proposal
The new proposal is not yet publicly available, but it is worth recalling that the company has repeatedly said that a mine proposal that does not destroy Fish Lake is impossible:
Throughout the more than 15 years that this project has been undergoing an environmental assessment, significant First Nations and public interest in preserving Fish Lake has been expressed. Notwithstanding the inherent difficulties of trying to preserve a lake in the midst/immediately adjacent to a plant site/ concentrator and open pit, Taseko has left no stone unturned in trying to find a way to preserve Fish Lake and develop the Project. …
It is not possible to preserve Fish Lake as a viable and functioning ecosystem while at the same time maximizing the full potential of the defined resource. From a mine planning perspective, in order to meet the objective of maximizing the full potential of the mineral resource at Prosperity, mine planners and decisions makers need to contemplate and prepare for the development of a pit that infringes on Fish Lake. [Emphasis added].
According to the company, it’s now able to preserve Fish Lake due to increased gold and copper prices, which enables it to put $300 million more towards the design and construction of the proposed mine. A further $300 million makes possible what the company only recent insisted was impossible.
While Taseko did previously argue that mine designs that did not immediately destroy Fish Lake were uneconomical, they also argued that these proposals were more harmful environmentally than destroying the lake outright. On the basis of Taseko’s technical evidence, the federal panel ultimately concluded that the alternate designs proposed by Taseko would not ultimately protect Fish Lake:
- as a result of the close proximity of the ore body to Teztan Biny (Fish Lake), it would not be preserved as a functioning ecosystem under the preferred mine development plan;
- if expansion of the open pit were to occur in the future to maximize the extraction of the resource, the open pit would encroach on and eliminate Teztan Biny (Fish Lake) even if attempts were made to preserve it;
We’ll be looking forward to the public release of the new plan, but until then unanswered questions include:
- Is Taseko now adopting technology which only months ago it dismissed as not “proven at the appropriate scale?”
- What are the risks that the long-term development of the deposit (which is physically located under Fish Lake) will compromise the lake’s integrity?
- There is no mention of Little Fish Lake/Y’anah Biny in the company’s press release. Does this mean that this smaller, but still important lake is still slated for destruction as it was in the first proposal?
- Is the proposal similar to the identified alternative project designs that Taseko and the federal government only recently dismissed as causing greater environmental harm than the full destruction of Fish Lake?
Questions about the process
But if there are questions about the environmental assessment, there are also questions whether a proponent can just re-open an environmental assessment process. The federal EA process is supposed to consider all of the possible designs of a project, so that a “no” at the end of the environmental assessment process is just that – a NO. Prime Minister Stephen Harper, speaking before Taseko’s new proposal, emphasized that the review of the original Prosperity mine proposal is final.
The government has rendered a decision. That decision is final. That’s a legal decision. … We acted on a comprehensive federal environmental assessment that was absolutely categorical …
To do otherwise would encourage companies to do what it appears that Taseko might have done – to propose the least costly alternative in the hopes that it will be approved, while sitting on more costly but potentially less destructive alternatives.
The Canadian Environmental Assessment Act does not provide for re-opening a completed environmental assessment. There are relatively few examples of a project actually being turned down under the Act, and none that we are aware of in which the proponent then revised and resubmitted the project. Certainly, no project on the scale of this one, having had a comprehensive study or review panel hearings for the environmental assessment, has been resubmitted. So there is no real precedent about how Taseko’s resubmitted proposal should be treated.
While the Prime Minister ruled out reversing his government’s decision on the original environmental assessment, he seems open to a revised proposal:
… we have invited the proponent to redesign the project if the proponent is interested in proceeding in a way that would respect the myriad and serious environmental concerns that were raised by that assessment.
But how should such a project be handled? Taseko says that it can rely upon the existing work done in the original environmental assessment and seems to be hoping for some sort of abbreviated environmental assessment process.
- Does the federal government have authority to reopen consideration of a project that it has rejected? The law holds that once legal authority has been exercised, the government lacks authority to reverse that decision. Perhaps the federal government will characterize this project as a new proposal, rather than a reassessment of the same project. But how many times do the Tsilhqot’in National Government and other opponents of the project need to go through this process?
- Are there no consequences for Taseko’s failure to identify the available alternatives to destroying Fish Lake in its original environmental assessment? That process cost taxpayers, as well as First Nations, communities, environmental groups and others who participated in the process, millions of dollars. Failing to hold Taseko responsible for its apparent lack of transparency on the process could encourage future proponents to be less than transparent during their environmental assessment.
- Will the new proposal be considered by the review panel that reviewed the initial proposal? This panel spent months becoming familiar with the Prosperity mine proposal, and it would be a waste if they were side-lined in favour of an internal government review, or a new review panel. However, the panel would probably need to be re-appointed if they are to consider the new proposal.
- What of the provincial environmental assessment? The province issued an environmental assessment certificate based upon a mine design that will never be built. While the BC legislation provides for the amendment of EA certificates, will there be a public process and renewed scrutiny of the new “improved” mine design?
Taseko is trying to do something new here that has never been done in the history of environmental assessment law in Canada: to change a NO into a YES. There is at least an appearance that they have been “gaming the system” and if so it has backfired on them. Far from giving the proposal an easy ride when it considers a new proposal, there would be good reason for the federal government to simply turn down the re-submitted proposal outright. Failing that, we hope that the government will be asking Taseko searching questions, and bringing a high level of scrutiny to bear on the proposed mine.
By Andrew Gage, Staff Counsel