If anyone is looking for a sneak preview of what is going to happen in January, after the release of the Joint Review Panel's report on the proposed Northern Gateway pipeline, just follow what's been happening with the New Prosperity project.
Taseko's planned gold and copper mine near Williams Lake ran into its latest roadblock back in October, when a three-member review panel found that the project would significantly infringe on traditional aboriginal practices, could pose a risk to area grizzly bears and seepage from the tailings pond might damage Fish Lake, about two kilometres away.
It's the last point that has Taseko crying foul.
Days after the release of the report, Taseko said a scientist with Natural Resources Canada provided the wrong data to the panel. That data, according to Taseko, was calculated using an incorrect tailings pond design and not the design the company says it would use.
The report is now in the hands of federal environmental minister Leona Aglukkaq, who now has three months left to make a recommendation to her cabinet colleagues for final approval or rejection. Impatient to hear whether Aglukkaq will take the company's complaint about improper calculations into consideration, Taseko took the battle to the federal court Friday, demanding a judicial review of the panel's findings. Specifically, it wants the seepage rates findings to be declared invalid and set aside, and then it wants a ruling that the panel itself wasn't fair in its handling of the data.
That process could take 12 to 18 months. Meanwhile, Taseko says it will drop its request for a judicial review of the federal cabinet rules in favour of the project.
Taseko executives and shareholders shouldn't hold their breath. The federal cabinet already rejected the proposal once, after the provincial government had given its blessing, but allowed the company to make changes and reapply, which it did. Although area MP Dick Harris has been a passionate proponent of New Prosperity, his Conservative colleagues have not been so boisterous in their support.
The legal shenanigans could become truly strange if Prime Minister Stephen Harper and his cabinet endorses New Prosperity. It could leave the Tsilhqot'in National Government, the area First Nation fiercely opposed to the project, picking up Taseko's request for a judicial review and running with it.
The federal court will undoubtedly receive a formal request for a similar review in January, regardless of the joint review panel's findings on Northern Gateway. First Nations and environmental groups, working apart or together, will seek a review in light of a positive recommendation, while Enbridge will no doubt do the same if the panel raises serious environmental and/or aboriginal concerns.
This mess could have been averted if the federal and provincial governments had set out an appeal process mechanism when it laid out the rules for environmental assessments. Without one, proponents and opponents have no choice but to go to the federal court when the assessment doesn't go their way.
Worst of all, the federal court might not be the final arbiter. The losing sides would be free to file a motion to the Federal Court of Appeal, a three-judge panel, to hear the case. Then, it could go all the way to the Supreme Court but first, the justices would have to rule the case was worthy of their attention and then they would hear submissions, before making their judgment.
Add that to the time spent in court and it could take five to seven years to exhaust all legal avenues.
By that time, there could be not just one, but two more, federal elections.
As it stands now, it appears the final fate of New Prosperity and Northern Gateway will be decided not by a review panel that hears from the public or even by a group of elected representatives but by a group of judges in an Ottawa courtroom.
If that's what ultimately happens, future environmental assessment review panels will be nothing more than a complete waste of time and money spent on a futile exercise in citizen engagement.
