Eight groups have responded to a request to the Canadian Environmental Assessment Agency panel from Tsilhqot’in chiefs asking for clarification on whether the mandate of the panel will be to consider, assess and make recommendations concerning the potential impacts of the New Prosperity Mine project on asserted and proven aboriginal rights.
Parties wishing to comment had until Aug. 17. All submissions have been posted on the CEAA website.
In a letter, Xeni Gwet’in (Nemiah Valley) Chief Marilyn Baptiste says the Tsilhqot’in people need to know whether the panel will have the same mandate to report on the project’s impacts on aboriginal rights and title as the previous panel.
“To our people, it is simply not possible to separate our rights as aboriginal peoples from the lands and resources that sustain these rights. It cannot be done. Our communities will not understand or accept such an artificial distinction.”
Baptiste suggests the public and First Nations are looking to the panel for an independent, impartial second assessment of the project impacts. “If this panel cannot assess impacts on aboriginal rights and title, in the same manner as the previous panel, then it cannot carry out this important role.”
On behalf of Taseko Mines Ltd., Karl E. Gustafson, Q.C., submitted a letter outlining the company’s recommendations. Taseko lays out a breakdown of responsibilities for the panel and government in a table and recommends changes to the panel’s terms of reference.
Those recommendations include the panel having the ability to consider and assess the potential impact of the project on potential and established aboriginal rights and title. In that sense, Taseko says, it may make findings about the manner or extent to which the project would have adverse impacts on such asserted rights or title after consideration of the relevant mitigation measures proposed by the proponent through the Environmental Impact Statement or as modified by the proponent during the hearing process.
The second recommended change is for the panel, in its report, to also identify other mitigation measures that could further mitigate adverse impacts on asserted or established aboriginal rights or title. But, Taseko says, the panel should not recommend which, if any, such additional measures are necessary to discharge the Crown’s duty to consult and accommodate, and in the case of established rights, the Crown’s obligation to determine whether any infringement of such rights would be justified.
“In making any such findings, the panel shall also indicate the views of interested aboriginal groups and the proponent concerning such additional mitigation measures, and may also indicate whether, in the panel’s view, such additional mitigation measures are reasonable and practicable in the circumstances.”
The letter concludes by suggesting it is appropriate to ensure that the panel does not make recommendations around additional mitigation or whether the government’s duty to consult and discharge related obligations have been met.
Stswecem’c Xgat’tem (Canoe Creek Band) Chief David Archie, in his letter, urges the panel to rely on and not “second guess” the panel report from the first Prosperity Mine review and that when the panel makes its decision that it answers whether the new proposal addresses the problems with the project that were identified by the first panel.
“As with the first panel, you cannot make any final decisions on our rights or whether Canada has fully consulted us. However, by reason of what is stated in the introduction and by the fact that you can make recommendations for measures to address infringements of our rights we believe you can and must decide whether anything has been done by Taseko, Canada or B.C. to address the concerns identified by the first panel,” Archie states.
In his submission, Bill Carruthers, chairperson for Share Cariboo/Chilcotin Resources, suggests the panel should not be making recommendations concerning aboriginal rights and title, and to do so is outside the panel’s mandate.
“The subject is complicated and has had court rulings that do not make it clear what rights and title the Aboriginal people have or don’t have,” he notes. Rights and title is an ongoing issue that will not be solved easily,” he states, adding, “please don’t try to solve a complicated issue at the expense of development potential that will benefit all the people of the Chilcotin.”
Echoing Carruthers, the Williams Lake & District Chamber of Commerce’s letter, signed by president Jason Ryll and past president and chair Walt Cobb, suggests the panel should not be making any recommendations based on aboriginal rights and title.
“If the mine will have an impact in some way on the aboriginal people, then it should be reported in the findings, but the issue of non-identfied rights and title is outside the panel’s mandate. Aboriginal rights and title is the responsibility of the federal government, not the panel,” the chamber letter says.
A submission from the Esketemc First Nation, prepared by Janes Freedman Kyle Law Corporation, proposes the panel’s ability to recommend mitigation is restricted to the point of being meaningless, given “the recent legislative changes and TOR (terms of reference) amendments respecting CEAA 2012 and the other limitations in the panel’s mandate, which have yet to be addressed in any concurrent Crown consultation process to date.”
The letter also raises concerns that the panel’s ability to recommend mitigation is limited to addressing effects that are based on its assessment of environmental effects.
“This conflicts with consultation law, which requires a direct assessment of potential adverse impacts from the project to rights — which is not solely limited to impacts that arise from a consideration of what constitutes environmental effects.”