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

Background

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.

Implications

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.

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