Canada: Federal Court Confirms Minimal To No Duty Of Procedural Fairness Owed To Proponents During Post-Hearing Crown Consultations


On December 5, 2017, the Federal Court released two decisions respecting applications for judicial review brought by Taseko Mines Limited (Taseko) for the New Prosperity mine project (the Project). The Minister of the Environment (the Minister) had previously concluded that the Project was likely to cause significant adverse environmental effects, and the Governor in Council decided that the effects were not justified in the circumstances.

The first application was brought in response to the technical findings of and procedural fairness afforded by the Joint Review Panel (JRP). The second application was brought in response to the constitutionality of certain provisions of the Canadian Environmental Assessment Act, 2012 (CEAA 2012) and the procedural fairness owed to Taseko during the Minister's post-hearing consultation with the Tsilhqot'in National Government (TNG). The Court dismissed both applications for judicial review.

Taseko Mines Limited v Canada (Environment), 2017 FC 1099

In Taseko Mines Limited v Canada (Environment), 2017 FC 1099, (Taseko 1) Taseko took issue with matters of procedural fairness and the JRP conclusions regarding the issue of toxic water seepage.

The Court found that the proponent was owed a high degree of procedural fairness during the review process, but that the proponent had been afforded the procedural fairness owed. The Court then focused primarily on the technical conclusions of the JRP challenged by Taseko, which it found to be reasonable in the circumstances.

The Court also found that the JRP's adherence to the precautionary principle was reasonable in the circumstances as Taseko's approach to adaptive management did not provide the necessary information on environmental effects and mitigations. The Court did recognize the possibility of adaptive management in review proceedings, but held that reliance on Taseko's vague adaptive management measures – essentially leaving such decisions until a later stage – had the potential to call into question the entire JRP process.

Taseko Mines Limited v Canada (Environment), 2017 FC 1100

In Taseko Mines Limited v Canada (Environment), 2017 FC 1100, (Taseko 2), Taseko challenged the Minister's and the federal cabinet's decisions that the Project was likely to cause significant adverse environmental effects and that the Project should not proceed. Taseko asserted it had not been afforded adequate procedural fairness and that the provisions of CEAA 2012 respecting environmental effects on Aboriginal people were ultra vires the federal government and therefore unconstitutional.

In Taseko 2, Taseko took issue with the level of consultation it was provided in contrast to the TNG and argued that procedural fairness requires that it be made aware of submissions made by a First Nation. The TNG was provided a meeting with the Minister and allowed to make written submissions after the JRP Report had been released. Taseko submitted that it should have been informed of these written submissions and given the opportunity to respond as it constituted part of the case against it.

The Court held that Taseko was owed a minimal degree of procedural fairness during the Minister's decision-making process and was owed no procedural fairness during the federal cabinet's decision-making process. The Court indicated that it would not determine the constitutional question in a vacuum, assumed the provisions in question were presumptively constitutional, and focused its analysis on the former issue. The Court also held that procedural fairness neither granted Taseko a right to take part in these consultations nor did procedural fairness require equal treatment of the parties by the Crown. The Court went further to hold that there may be circumstances where fairness among parties requires unequal treatment, such as when the duty to consult and, if necessary, accommodate, is engaged.

However, the Court did recognize that circumstances may arise where procedural fairness would require the Minister to inform Taseko if such post-hearing submissions or recommendations contained new information or could lead to the Minister not accepting the positive result of a review panel process. Consequently, because TNG's submissions contained no new information and the Minister relied on the conclusions of the JRP, in the Court's view, this did not prejudice Taseko. The Court, citing Gitxaala Nation v Canada, 2016 FCA 187, also reiterated that post-Report consultation is not only appropriate, it allows meaningful two-way dialogue between the Crown and affected First Nations.


Taseko 1 affirms that although adaptive management has a place in environmental assessment processes, the precautionary principle must be observed and certain important decisions cannot be deferred until the next stage of the process, particularly where the information required to confirm adaptive management measures has not been provided.

Taseko 2 affirms that although a proponent is owed a high degree of procedural fairness during a review process held pursuant to CEAA 2012, once the review has left the review panel and is taken on by the Minister or federal cabinet (i.e., the Crown), the proponent is not owed the same duty of procedural fairness and the Minister or federal cabinet can accept submissions from First Nations groups, without providing the proponent an opportunity to respond to meet the case against it. Fortunately, however, the Court recognized that if the decision of the Minister or Crown may be inconsistent with the recommendations of the JRP or based on new information, the proponent ought to be provided with notice and presumably an opportunity to respond.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions