Taseko is asking the federal court to step in and rule that part of the environmental assessment into the proposed New Prosperity copper and gold mine was out of order.
The mining company has filed an application for a judicial review for its open pit project south of Williams Lake and will be asking the federal court to acknowledge the company's claim that an error was made by a scientist from Natural Resources Canada (NRCan). The company believes the mistake compromised the findings of the three-member review panel.
"A mistake was made by NRCan during the panel process, that's our contention. The panel then relied on this mistake to arrive at flawed findings, so we are asking the court to set aside those panel findings," Taseko vice-president of corporate affairs Brian Battison said.
Days after the Canadian Environmental Assessment Agency (CEAA) panel released its findings on Oct. 31, the company said an engineering firm it retained realized an error was made by NRCan regarding the way the seepage rates from the tailings pond were calculated. Those rates were relied upon by the panel when they determined there would be significant adverse affects to fish and fish habitat.
According to Taseko, NRCan didn't use the correct tailings pond design when making its calculations. If the agency had, the company believes seepage rates would have been an order of magnitude lower because the engineered soil liner the company said it plans to use would be less porous than the design NRCan used in its modeling.
The company is asking the court for a declaration that the findings related to seepage rates be ruled invalid and set aside. Taseko is also seeking a ruling that the panel failed to observe basic principles of procedural fairness.
"This is not a lawsuit, nobody is suing anybody here," Battison said. "It's an avenue that's open to those who are in a proceeding such as this to ask the court to examine materials that may or may not have been given appropriate or full consideration."
Yunesit'in chief Russell Myers Ross called the application for a judicial review "a desperate attempt" by the company to keep the project alive.
"We have confidence that it's in the panel report, that it will stand up," Ross said. "I think the panel is pretty clear that there things can't be mitigated."
Ross said Tsilhqot'in National Government doesn't know what formal process it will play if a judicial review is granted, but said the group will ensure its voice is heard. In the meantime, it will continue to promote the findings of the panel.
"The panel members were independent, they had a lot of integrity and I think we have to have confidence in the process itself," he said.
The panel determined that if tailings make their way into Fish Lake, about two kilometres away, it could have significant adverse effects. It also found that the mine would infringe on traditional aboriginal practices and that the cumulative effects of the mine and other projects in the region could hurt a population of grizzly bears if mitigation measures aren't taken.
Ross believes that those factors are enough to prevent the mine from being built, but Battison said if the government or the court factors in the correct tailings pond design many of those concerns will be moot.
"This is a project that people can have both high environmental protection and economic development," he said. "We feel and continue to feel that there are no significant adverse environmental effects associated with the project."
Taseko made its judicial review application last week because it had to file within 30 days of the report being released.
The company has already sent letters to CEAA and federal Environment Minister Leona Aglukkaq pointing out the error it believes occurred and asking that it be taken into account before Aglukkaq makes a recommendation to cabinet on whether or not the project posses a significant environmental risk.
Battison said the company has not received any sort of acknowledgment from the federal government, so Taseko has decided to ask for the judicial review.
"This legal challenge does not restrict or impede in any way the Minister of Environment from making a decision to approve the project," he said.
While Aglukkaq has three more months to make her decision, Battison estimates the legal proceedings could take anywhere from a year to 18 months. If the federal government rules in favour of the company, Taseko will drop its request for a judicial review.
"What we're asking the court to do isn't a whole lot different of what we're asking the Minister of Environment to do," Battison said. "We've identified a problem, we've brought it to her attention, we're asking her to take it into consideration as part of her decision-making process."
