IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Taseko Mines Limited v. Canada (Canadian Environmental Assessment Agency),
	2018 BCSC 417

Date: 20180316

Docket: S178664

Registry: Vancouver

Between:

Taseko Mines Limited

Petitioner

And

Canadian Environmental Assessment Agency,

and the Attorney General of Canada

Respondents

Before: The Honourable Mr. Justice Thompson

Reasons for Judgment

Counsel for the Petitioner:	K.M. Stephens J. Roos
Counsel for the Respondents:	L. Lachance O. Pulleyblank
Place and Date of Hearing/Ruling:	Vancouver, B.C. March 1, 2018
Place and Date of Written Reasons:	Vancouver, B.C. March 16, 2018

[1] Taseko Mines Limited continues its efforts to obtain the necessary administrative approvals to construct and operate a gold/copper mine on a site approximately 125 km southwest of Williams Lake.

[2] The Canadian Environmental Assessment Agency (the “Agency”) considers certain site work planned by Taseko (the “planned activities” or “activities”) to be prohibited by s. 6 of the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 [CEAA 2012]. In August 2017, the Agency filed a petition in this Court seeking an injunction prohibiting the planned activities. In September 2017, Taseko filed the within petition seeking a declaration that s. 6 of CEAA 2012 does not apply to the activities. Both petitions are scheduled for hearing on 23-24 April 2018.

[3] The Agency and the Attorney General of Canada (collectively, “Canada”) applies to strike Taseko’s petition on two alternative grounds: first, that the petition is unnecessary and an abuse of process; second, that the relief sought in the petition is within the exclusive jurisdiction of the Federal Court. At the close of submissions, Canada’s application to strike was dismissed with written reasons to follow. These are those reasons.

Background

[4] Taseko proposes to mine one of the largest gold/copper deposits in the world. The ore body was discovered in the late 1960s. According to the province’s Senior Inspector of Mines, Taseko has held mineral tenures over the project area since at least 1969, and it has done extensive exploration work since 1979. It is necessary to trace some of the regulatory and litigation history of the past decade to put the present application in context.

[5] In 2007, the BC Ministry of Energy and Mines issued Taseko an exploration permit under the Mines Act, R.S.B.C. 1996, c. 293.

[6] In 2010, Taseko obtained an environmental assessment certificate from the provincial government, pursuant to the Environmental Assessment Act, S.B.C. 2002, c. 43 for its project proposal (then called “Prosperity”) to construct and operate a mine. However, later in the same year, following a panel review under the since-repealed Canadian Environmental Assessment Act, S.C. 1992, c. 37, the Prosperity Project was rejected. The federal government’s response to the review panel’s report indicated that the government is not opposed to the mining of the ore body but the potential significant adverse environmental effects cannot be justified; the government noted that its decision does not preclude Taseko from submitting a proposal that addresses the factors considered by the review panel.

[7] In 2011, Taseko began to pursue a revised proposal called “New Prosperity.” To this end, it obtained an amendment to its Mines Act exploration permit to allow for the construction of test pits, drill sites, and trails. It also obtained permission to cut and remove timber under the Forest Act, R.S.B.C. 1996, c. 157. The Tsilhqot’in Nation and the Tsilhqot’in National Government (the “TNG”) opposed Taseko’s plans and filed a judicial review petition challenging the issuance of these permits, and sought an injunction. See Taseko Mines Limited v. Phillips, 2011 BCSC 1675. In the aftermath of the 2011 interlocutory injunction hearing, Taseko conducted a reduced scope of exploration work in 2012.

[8] The New Prosperity Project underwent a new federal environmental assessment, this time under CEAA 2012. A review panel released its report in October 2013 and made findings of anticipated significant adverse environmental effects. In February 2014, the federal government decided that these effects could not be justified. A press release accompanying the government decision statement invited the submission of another proposal that addresses the government’s concerns.

[9] Taseko filed judicial review applications in Federal Court challenging the 2013 review panel report and the 2014 government decision based on the report. These applications were heard together early in 2017 and dismissed on 5 December 2017: Taseko Mines Limited v. Canada (Environment), 2017 FC 1099; Taseko Mines Limited v. Canada (Environment), 2017 FC 1100. Taseko has filed appeals of both decisions.

[10] In 2015, the Province granted a five-year extension to the environmental assessment certificate issued in 2010. Taseko has applied to amend the extended certificate, and its application remains under review. However, on 14 July 2017 Taseko did succeed in obtaining an amendment to its Mines Act permit to allow it to undertake a site investigation program. This amendment authorizes construction of test pits, drill holes, pumping wells, and access trails, as well as certain geophysical investigations.

[11] The TNG urged the Senior Inspector of Mines to refuse the amendment to Taseko’s Mines Act permit because Taseko lacked federal environment assessment approval. In his reasons for granting the amendment, the Senior Inspector of Mines instructed himself that his statutory decision on the amendment application is a separate and independent process from the federal process for review of a major mine project. He acknowledged that the federal government has rejected two different project designs, but also took notice that “the federal decisions do not preclude further planning and development in the area and [Taseko] is not precluded from applying with a new project design.” In the days following the issuance of the amended Mines Act permit, the TNG filed a petition for judicial review in this Court challenging the permit based on the Province’s alleged failure to consult, and filed an application for an interlocutory injunction enjoining Taseko from carrying out its planned activities.

[12] On 17 July 2017, an Agency enforcement officer wrote to Taseko asking for its position on whether the planned activities would violate s. 6 of the CEAA 2012. Section 6 prohibits doing any act or thing in connection with the carrying out of a designated project in certain circumstances:

6 The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect referred to in subsection 5(1) unless

(a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or

(b) the proponent complies with the conditions included in the decision statement that is issued under subsection 31(3) or section 54 to the proponent with respect to that designated project.

[13] Taseko responded to the Agency on 21 July 2017. It provided a copy of the amended Mines Act permit and related material, and explained that its exploration and site investigation work will not involve the construction or operation of a mine or any other activities that would fall within the scope of the CEAA 2012 definition of “designated activities”. On 28 July 2017, the Agency enforcement officer wrote to Taseko. She advised that the Agency considers the proposed activities to be in connection with the carrying out of the New Prosperity Project, and the activities would therefore constitute an offence under CEAA 2012. That same day, Taseko responded and disputed the Agency’s position.

[14] The TNG injunction application came on for hearing over four days beginning on 31 July 2017. Canada did not participate in that hearing. Mr. Justice Steeves reserved judgment. On 4 August 2017, the Agency asked Taseko to confirm that it would not proceed with the activities under the amended Mines Act permit regardless of the outcome of the TNG injunction application. Taseko complied. It wrote to the Agency on 9 August 2017 and advised that it would not proceed with the planned activities in the circumstances of the ongoing disagreement with the Agency regarding the lawfulness of the activities. Steeves J. adjourned (generally) the TNG injunction application when Taseko brought its 9 August 2017 letter to his attention.

[15] On 10 August 2017, Canada filed a petition in this Court seeking relief, including an injunction to restrain Taseko from carrying out the activities under the amended Mines Act permit on the basis that it would violate s. 6 of CEAA 2012. On 11 August 2017, the Agency again wrote to Taseko seeking confirmation that it would not proceed with the activities unless and until it obtained federal environment assessment approval for the New Prosperity Project. On 7 September 2017, Taseko responded to the Agency confirming that Taseko continued to stand down and advised that it did not intend to proceed with the activities until the earlier of: (1) a pronouncement from a court of competent jurisdiction that has the effect of confirming that s. 6 of CEAA 2012 does not apply to the activities; or (2) any other judicial decision, legislative change or other regulatory development to similar effect.

[16] On 15 September 2017, Taseko filed the within petition seeking a declaration that s. 6 of CEAA 2012 does not apply to its proposed activities. In a nutshell, Taseko argues that the activities constitute exploratory work and not “an act or thing in connection with the carrying out of a designated project.” On 11 October 2017, Canada filed a jurisdictional response setting out its position that this Court does not have jurisdiction over the matter. As noted above, both Taseko’s declaration petition and Canada’s injunction petition are scheduled for hearing on 23-24 April 2018.

The Applicable Supreme Court Civil Rules: R. 9-5(1) and R. 21-8(1)

[17] Canada submits that the petition is unnecessary or otherwise an abuse of process and relies on R. 9-5(1)(b) and (d):

9-5 (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[18] The test on an application to strike is a stringent one and is well known. Canada bears the burden of establishing that it is plain and obvious that the petition is bound to fail because it contains a radical defect: Hunt v. Carey Canada Ltd., [1990] 2 S.C.R. 959 at 980; Johnstone v. Gardiner, 2012 BCCA 184 at paras. 10 and 17. The “plain and obvious” standard applies to all branches of R. 9-5(1): Huang v. Silvercorp, 2016 BCSC 278 at para. 20. I accept the proposition that Taseko’s petition ought to be dismissed if it is plain and obvious that the petition serves no useful purpose.

[19] Canada also submits that the petition be struck on jurisdictional grounds. After filing a jurisdictional response, as Canada has done, R. 21-8(1) provides that a party may apply to strike a petition, or dismiss or stay the proceeding:

21-8 (1) A party who has been served with an originating pleading or petition in a proceeding, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form 108,

(a) apply to strike out the notice of civil claim, counterclaim, third party notice or petition or to dismiss or stay the proceeding on the ground that the notice of civil claim, counterclaim, third party notice or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,

(b) apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or

(c) allege in a pleading or in a response to petition that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding.

[20] On the R. 21-8(1) branch of its application Canada must establish that there is “no arguable case on either the pleadings or evidence that the facts, if true, would establish jurisdiction”: Purple Echo Productions, Inc. v. KCTS Television, 2008 BCCA 85 at para. 36.

Discussion and Analysis

[21] To succeed on this application, Canada must clear one of the high hurdles set by R. 9-5(1) and R. 21-8(1). My role on this application is to screen out, without delving deeply into the merits, claims that are obviously unnecessary or abusive, or obviously made in the wrong court.

Is it Plain and Obvious that the Petition is Unnecessary or an Abuse of Process?

[22] Canada’s first point on the R. 9-5 branch of its application is that Taseko’s petition should be struck as unnecessary and abusive because it serves no useful purpose. Canada submits that its petition squarely raises the essential issue in Taseko’s petition: whether or not the planned activities are caught by s. 6 CEAA 2012. Canada argues that Taseko’s petition amounts to an impermissible attempt to hive off and predetermine some of the arguments Taseko intends to make in response to Canada’s petition. Rule 9-4 provides for applications to determine points of law, but it does not apply to proceedings commenced by petition, and Canada submits that Taseko is attempting to do indirectly what the Rules do not allow it to do directly, and this is abusive.

[23] Taseko’s petition argues that s. 6 of CEAA 2012 does not apply to its planned activities because the activities are not a “designated project” per se, and the activities are not “an act or thing in connection with the carrying out” of the New Prosperity Project (which is a designated project). Taseko also makes this argument in its response to Canada’s petition; in its response, Taseko also argues that there is no serious possibility that its activities may cause a listed environmental effect, that Canada has not shown it to be likely that an offence will be committed because of Taseko’s commitment not to proceed until it has legal clearance, and that exceptional circumstances exist which justify the Court’s exercise of its discretion to refuse an injunction.

[24] Canada submits that Taseko is taking one of its responsive arguments and trying to hive it off for separate predetermination. The exhortations from our Court of Appeal to be cautious about allowing parties to litigate in slices are well known, and Canada says that Taseko’s petition amounts to an effort to litigate in slices and, because a new petition has been filed in this effort, produces an unwelcome multiplicity of proceedings dealing with the same subject matter.

[25] I am not convinced that it is plain and obvious that Taseko’s petition is either unnecessary or abusive. Taseko’s position is that it intends to proceed with the planned activities, but only once it is satisfied that it can do so lawfully — i.e., that the activities do not fall within the scope of s. 6 of CEAA 2012. Taseko submits that it is entitled to put squarely before this Court the statutory interpretation question it needs answered. Taseko agrees that it is possible and perhaps probable that the Court will decide the statutory interpretation question in the course of hearing Canada’s petition. However, I agree with Taseko that it is also conceivable that the Court could dismiss Canada’s petition on other grounds without engaging with the question that Taseko needs answered.

[26] If Canada had commenced its proceeding by way of action rather than petition, it would have been open to Taseko to counterclaim for the relief it seeks (subject to the jurisdiction question) rather than commencing its own proceeding. I am not persuaded that Taseko filing what amounts to a counterclaim — in what it says is an effort to ensure that the Court is able to grant all appropriate relief and address all issues in dispute — is plainly and obviously unnecessary or abusive. Arrangements have been made to have both petitions heard together and this saps away much of the strength of Canada’s submissions about multiplicity of proceedings and litigation in slices.

[27] Canada’s second R. 9-5 point is that Taseko’s purpose in the planned activities may be evolving since it obtained the amendment to its Mines Act permit such that the activities would be pre-environmental assessment work toward a new project design. Canada submits that if this is the case, then it is possible that the Agency would take a different view of whether it would contravene s. 6 of CEAA 2012. Because a fresh Agency decision would be called for, the argument is that a declaration in relation to the planned activities in relation to a defunct project would serve no useful purpose. Canada makes the related submission that Taseko’s provincial environmental assessment certificate expires in January 2020 and there is evidence that suggests that a substantial start on the New Prosperity Project by that date is not possible. Canada submits that it is overwhelmingly likely that Taseko will have to undergo a new provincial environmental assessment process and Taseko therefore seeks relief that would serve no useful purpose.

[28] Taseko’s answer is that it has two reasons to obtain data from its planned activities: (1) to continue to pursue the New Prosperity Project (the rejection of which is subject to judicial review appeals); and (2) for use in a potential refined or revised project design. Taseko points to the federal government’s invitation to submit another proposal that addresses the government’s concerns, as well as to the reference in the reasons of the Senior Inspector of Mines to the fact that Taseko is not precluded from applying with a new project design. Taseko submits that it has consistently referred to its dual purposes, including in its correspondence with the TNG and in its material filed for the TNG injunction application. In light of its dual purposes for data acquisition from the planned activities, Taseko submits that any difficulties in substantially starting the New Prosperity Project by January 2020 does not determine whether the petition is unnecessary.

[29] Taseko submits that the premise of Canada’s argument is that the ultimate purpose of Taseko’s planned activities is central to determination of whether the activities are contrary to s. 6 of the CEAA 2012. Taseko rejects this premise. It submits that when construing s. 6, the focus ought to be objective rather than subjective: the proper focus is not a subjective test of purpose but rather an objective question of whether the planned activities are caught by the statutory language. Taseko’s statutory interpretation argument does not rely upon either of its dual purposes for the activities. It argues that the activities are exploratory and thus not “in connection with the carrying out” of the project.

[30] Taseko’s arguments are plausible. It is not plain and obvious to me that the difficulties in achieving a substantial start of the New Prosperity Project by January 2020 renders Taseko’s petition unnecessary. The parties disagree on the role and importance of the purpose of Taseko’s planned activities in the proper construction of s. 6 of CEAA 2012. It is not plain and obvious that Canada’s submissions will prevail. In the result, I am not persuaded that Taseko’s petition is either unnecessary or an abuse of process.

Is it Arguable that the Court has Jurisdiction?

[31] Canada submits that this Court does not have jurisdiction to grant the declaratory relief sought by Taseko. Canada characterizes the declaratory relief claimed by Taseko as being sought against the Minister of Environment and the Agency in relation to how they have exercised or will exercise their powers under CEAA 2012. Canada argues that the pertinent provisions of the Federal Courts Act, R.S.C. 1985, c. F-7, and the cases that have considered those provisions clearly establish that the Federal Court has exclusive jurisdiction to grant declaratory relief against any body or person having, exercising or purporting to exercise powers conferred by or under an Act of Parliament.

[32] Canada relies upon the following provisions of the Federal Courts Act:

2 (1) In this Act,

federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

. . .

18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

. . .

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

. . .

18.1 (3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

[Emphasis added.]

[33] Canada submits that Taseko is not bringing its petition because it has an abstract interest in the scope of s. 6 of CEAA 2012, but because it disagrees with the Agency’s interpretation of that provision. Taseko wants a declaration that will bind the Agency and the Minister of Environment so that they will no longer constitute a threat to what Taseko regards as its legal interests. Canada submits that Taseko is seeking a bare declaration against a federal decision maker that is only available through judicial review. Canada relies upon Cameron v. Albrich, 2011 BCSC 658; Ehattesaht First Nation v. British Columbia (Agriculture and Lands), 2011 BCSC 658, leave to appeal ref’d 2011 BCCA 325; Chief Joe Hall v. Canada (Attorney General), 2007 BCCA 133; United States of America v. Helfrich, 2004 BCSC 297; Alford v. Canada (Attorney General) (1997), 31 B.C.L.R. (3d) 228 (S.C.), aff’d 1998 CanLII 6451 (B.C.C.A.); and Cummins v. Canada (1997), 50 B.C.L.R. (3d) 262 (S.C.).

[34] Taseko responds that there is a distinction drawn in the authorities between declaratory relief “against” a federal board, commission or other tribunal and a declaration relating to the interpretation of a federal statute. Taseko submits that it is not seeking judicial review of a statutory decision, either directly or indirectly, because it says that there has been no decision under CEAA 2012 to challenge. Taseko submits that the letter received from the Agency’s enforcement officer is a statement of position or opinion but is not an exercise of jurisdiction or powers conferred under CEAA 2012, and is therefore not judicially reviewable. Taseko maintains that its petition looks to this Court to obtain clarity with regard to its rights under a provincially issued permit. Taseko cites Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62; British Columbia Investment Management Corporation v. Canada (Attorney General), 2014 BCSC 1296, aff’d 2015 BCCA 373; Longley v. Canada (Revenue) (1992), 66 B.C.L.R. (2d) 238 (C.A.); Law Society of British Columbia v. Canada (Attorney General) (1980), 18 B.C.L.R. 181 (C.A.) and 24 B.C.L.R. 1 (C.A.), each aff’d [1982] 2 S.C.R. 307.

[35] Each party submits that the decisions they rely upon are similar or analogous, and each party makes cogent arguments that the other’s cases are of limited assistance in analyzing this Court’s jurisdiction to grant the declaration sought by Taseko. There is no case that can be said to be directly on point. Remembering that the question on this preliminary motion is not whether the Court has jurisdiction but whether Canada has shown that there is no arguable case to be made in that respect, I conclude that Taseko has plausible arguments on jurisdiction that ought to be heard.

Summary and Order

[36] I am not persuaded that Taseko’s petition is plainly and obviously unnecessary or plainly and obviously an abuse of process. Canada has also failed to establish that Taseko has no arguable case that the facts pleaded and alleged, if true, would establish jurisdiction to grant the relief sought.

[37] By consent, the parties are at liberty to rely on affidavits previously filed in Canada’s petition proceeding (Vancouver Registry, S177504) at the hearing of Taseko’s petition. In all other respects, the respondents’ application is dismissed. Costs to the petitioner in the cause.

“Thompson J.”