Federal Review Panel Prosperity Gold-Copper Mine Project

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1 Federal Review Panel Prosperity Gold-Copper Mine Project September 18, 2009 Tsilhqot in National Government th Avenue North Williams Lake, BC V2G 4T4 c/o Shawn Nixon via at Canoe Creek First Nation General Delivery Dog Creek, BC V0L 1J0 c/o Bruce Stadfeld Via at Williams Lake Band 2672 Indian Drive Williams Lake, BC V2G 5K9 c/o Myron Barr Via at Taseko Mines Limited West Pender Street Vancouver, BC V6C 2V6 c/o Keith Clark Via at Esketemc First Nation P.O. Box 4479 Williams Lake, BC V2G 2V5 Via at Dear Sirs/Madams: This letter is further to the teleconference held by the Panel Secretariat, on behalf of the federal Prosperity Review Panel (the Panel), on September 14, Firstly, the Panel Secretariat would like to thank all participants in the conference call for constructive comments and participation. For your records, a summary of the September 14, 2009 teleconference is attached to this letter. The purpose of this letter is to provide an overview of the Panel s proposed approach to gathering information on the current use of lands and resources for traditional purposes by First Nations in the area of the proposed Prosperity Gold-Copper Mine project, which was discussed in the teleconference. The Panel noted in its sufficiency determination of June 24, 2009 that information on the current use of lands and resources for traditional purposes by potentially affected First Nations is lacking in the Environmental Impact Statement (EIS), and that such information is important to enable the Panel to fulfil its mandate (Section 9.0, page 15). Based on the correspondence received from various parties 1, the Panel understands that additional, written information on the current use of lands and 1 CEAR Document #1041 Letter from TNG to Panel dated July 17, 2009 CEAR Document #1047 Letter from Panel to TNG dated July 22, 2009 CEAR Document #1066 Letter from Taseko to Panel dated July 31, 2009 CEAR Document #1086 Letter from TNG to Panel dated August 10, 2009 CEAR Document #1088 Letter from Taseko to Panel dated August 11, 2009 CEAR Document #1114 Letter from TNG to Panel dated August 13, 2009 CEAR Document #1093 Letter from Agency to Panel received August 14, 2009 CEAR Document #1115 Letter from TNG to Panel dated August 18, Elgin Street, 22 nd Floor, Place Bell Canada - Ottawa, Ontario K1A 0H3

2 Federal Review Panel Prosperity Gold-Copper Mine Project resources for traditional purposes by First Nations will not be forthcoming in the immediate future. As such, and as indicated in its letter of June 24, 2009, the Panel is taking other measures in order to complete its review in a timely manner. The following approach to gathering the required information on the current use of lands and resources for traditional purposes by potentially affected First Nations in the project area is based on the approach that was discussed during the teleconference. However, a few minor changes are being proposed with respect to the period of time provided to Taseko to respond to the new information presented and the public comment period on Taseko s response: Once the Panel is satisfied that the EIS contains sufficient information to proceed to the public hearing on all matters except the current use of lands and resources for traditional purposes by First Nations, it will announce and schedule the public hearing; The public hearing would commence with community hearing sessions focussed specifically on gathering the outstanding information on the current use of lands and resources for traditional purposes by potentially affected First Nations in the project area; Following the completion of these community hearing sessions, there will be a brief adjournment in order to provide Taseko Mines Ltd. with an opportunity to respond to any new information that is brought forward during the community hearing sessions. This brief adjournment will also allow for the commencement of the general and/or topic-specific hearing sessions. The public will be provided with an opportunity to comment on Taseko's response during the general and/or topic specific hearing sessions; The general and/or topic-specific hearing sessions would be followed by additional community hearing sessions in order to allow communities an opportunity to present to the Panel their views on the implications of the proposed project and on issues of importance to First Nations. These community hearing sessions would also provide an opportunity for communities to provide their views on Taseko s responses to the new information provided on the current use of lands and resources for traditional purposes by First Nations; If necessary, an additional general hearing session could be scheduled to address outstanding issues relating to Taseko s response to the information on the current use of lands and resources for traditional purposes; and Following the close of the public hearing, the Panel would complete its report within 60 days, as outlined in its Terms of Reference. It is the Panel s opinion that using the community hearing sessions to gather the outstanding information on the current use of lands and resources for traditional purposes by First Nations is likely the most efficient and appropriate method of obtaining the information in a timely manner. Nevertheless, the Panel reiterates its request that First Nations provide as much information in writing as they can in 160 Elgin Street, 22 nd Floor, Place Bell Canada - Ottawa, Ontario K1A 0H3

3 Federal Review Panel Prosperity Gold-Copper Mine Project advance of the public hearing to facilitate review and consideration of this material by all parties. Following the teleconference, the Panel Secretariat received from Taseko Mines Limited a new proposal to gather the outstanding information on the current use of lands and resources for traditional purposes by First Nations 2. This proposal is attached for your review. It is requested that you provide any concerns with the approach discussed in this letter as well as any comments on the new approach proposed by Taseko Mines Ltd. in writing to Colette Spagnuolo, Panel Manager, via at by September 25, Thank-you for your input and your ongoing interest in this environmental assessment. Best Regards, <original signed by> Colette Spagnuolo Panel Manager Panel Secretariat c.c.: Garry Alexander, BC Environmental Assessment Office Chief Bernie Elkins, Tsilhqot in National Government Loretta Williams, Tsilhqot in National Government Chief Charlene Belleau, Esketemc First Nation Chief Marilyn Camille, Canoe Creek First Nation Chief Ann Louie, Williams Lake Band Chris Wycotte, Williams Lake Band enclosure: Meeting Notes Approach to Gathering Traditional Use Information for the federal Prosperity Review Panel enclosure: Approach proposed by Taseko Mines limited to gathering information on the current use of lands and resources for traditional purposes by First Nations 2 from Keith Clark, Lang Mitchner (on behalf of Taseko Mines Ltd.) to Gavin Fitch, Panel Secretariat, dated September 14, Elgin Street, 22 nd Floor, Place Bell Canada - Ottawa, Ontario K1A 0H3

4 Annex 1 Meeting Notes Approach to Gathering Traditional Use Information for the federal Prosperity Review Panel Participants Taseko Mines Limited: Keith Clark (Lang Mitchner) Mica Robinson (Lang Mitchner) Brian Battison Rod-Bell Irving Scott Jones Tsilhqot in National Government: Shawn Nixon (Woodward and Company) Pat Larcombe (consultant) Chief Bernie Elkins Williams Lake Band Myron Barr (Peter Grant and Associates) Esketemc First Nation Beth Bedard Panel Secretariat Gavin Fitch (McLennan Ross) Colette Spagnuolo Livain Michaud Kerrie Engler Canoe Creek First Nation Bruce Stadfeld (Mandell Pinder) G. Fitch explained the purpose of the call was to discuss an approach being proposed by the federal Prosperity Review Panel to gather traditional use and cultural heritage information in order to allow the Panel to complete its review of the proposed project. G. Fitch explained the proposed approach, as laid out in a 1 page summary circulated by C. Spagnuolo prior to the call. The approach includes the following: The option of utilizing the community hearing sessions in order to obtain traditional use and cultural heritage information as outlined below: o Once the Panel is satisfied that the EIS contains sufficient information to proceed to the public hearing, for all matters except the effects of the proposed project on traditional use and cultural heritage, it would set dates for community hearing sessions; o The community hearing sessions would be used to gather information on traditional use and cultural heritage and to hear views on the effects of the proposed project; o Following the completion of the community hearing sessions, the Panel would suspend the public hearing in order to provide Taseko Mines Ltd. with an opportunity to respond to any new information that is brought forward during the community hearing sessions; o Taseko Mines Ltd. s response to the new information would be made available to the public for a short comment period; o The Panel would then reconvene the public hearing and continue with the general and/or topic-specific hearing sessions; and o Following the close of the public hearing, the Panel would complete its report within 60 days, as outlined in its Terms of Reference. 1

5 Annex 1 B. Stadfeld questioned whether the proposed approach would allow First Nations to discuss issues relating to the potential effects of the proposed project on rights and title. - G. Fitch replied that the proposed approach would not restrict First Nations ability to present to the Panel information on the effects of the project on rights and title. K. Clark stated that any process that is decided upon needs to be governed by fairness and the principles of natural justice. Taseko has been directed by the Panel to provide information on the current use of lands and resources for traditional purposes, as provided by First Nations. However, First Nations must act in good faith and provide information at the first available opportunity. This requirement is outlined in Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.) (paragraph 180). The Halfway River case is referred to in the decision of Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (SCC), paragraph 42; the Haida decision states that good faith is required on both sides (i.e. the Crown and First Nations). Therefore, First Nations are not only faced with a request from the Panel but also with a legal obligation through the courts to provide information. K. Clark asked if the proposed first set of community hearing sessions is to address the full gamut of First Nation information or if the scope of the sessions would be limited. K. Clark indicated that Taseko will provide a written response to the Panel s proposed approach tomorrow (Sept. 15). Chief Elkins asked when the Panel would complete its assessment of the strength of claim from First Nations. - G. Fitch indicated that the Panel is not mandated to make a determination regarding First Nation strength of claim. The proposed community hearing sessions would be used to hear all information from the First Nations, including information on traditional use. However, G. Fitch indicated that the Panel could hold specific community hearing sessions to gather information the outstanding information and then hold regular community hearing sessions at a later date. Chief Elkins asked when the Panel would be making a preliminary determination of strength of claim. - G. Fitch indicated that the Panel is not mandated to make any determinations regarding the validity of rights or title claims, the scope of the Crown s duty to consult and/or whether Canada has met its duty to consult. K. Clark requested that the Panel differentiate between traditional use and cultural heritage information and the current use of lands and resources for traditional purposes. - C. Spagnuolo confirmed that the Panel s June 24/09 sufficiency determination references both the current use of lands and resources for traditional purposes (see Information Request 5.2 and 9.0). The sufficiency determination also references the EIS Guidelines, which refer to First Nations traditional uses and activities (see Information Request 9.0). 2

6 Annex 1 - G. Fitch confirmed that definition of environmental effect in the Canadian Environmental Assessment Act references the current use of lands and resources for traditional purposes by Aboriginal persons, K. Clark indicated that traditional use information is much broader and covers a larger period of time dating back into history. S. Nixon indicated that the TNG is in general agreement with the proposed approach. The TNG intend to present the bulk of their information directly to the Panel during the community hearing sessions. However, the TNG is also trying to get some of the information written down in advance of the hearing sessions. In response to K. Clark s comments, S. Nixon stated that the consultation obligation is between the Crown and First Nations, not between the proponent and First Nations. S. Nixon also indicated that the Panel may want to consider switching the order of the hearing sessions such that the general/topic specific hearing sessions are held prior to the community hearing sessions. S. Nixon stated that it may be difficult for First Nations to discuss the potential impacts of the project on the current use of lands and resources without first having information on the predicted effects of the project and the areas that are likely to be affected. G. Fitch indicated that he concurs that traditional use information could encompass a lot bigger picture than the definition of the current use of lands and resources included in the definition of environmental effect in the Canadian Environmental Assessment Act. G. Fitch also indicated that the information brought forward by First Nations should be relevant to the project. Further, First Nations should give thought to the level of detail of information on rights/title that is brought forward in order to ensure that any information presented to the Panel is relevant given the Panel s mandate. B. Stadfeld indicated that it is important to differentiate between the determinations that the Panel can and can not make. However, this does not preclude First Nations from being able to present information to the Panel or the Panel s ability to summarize and analyze any such information in its report. M. Barr indicated that the EIS Guidelines (page v) discuss the Panel s role to facilitate and promote the use of traditional knowledge in the review process. M. Barr indicated that the Williams Lake Band does not have the capacity to fully participate in the review process and requested whether Taseko or the CEA Agency will provide additional capacity funding. - G. Fitch responded that the Panel does not have a mechanism through which it can provide funding and therefore cannot address capacity issues. M. Barr also asked how the Panel will solicit information at the community hearing sessions. 3

7 Annex 1 - G. Fitch indicated that the Panel will follow the procedures laid out in the Public Hearing Procedures document that has already been approved and issued in final format. K. Clark stated that the critical component of the discussion is what information is missing. P. Larcombe questioned whether the Panel would map out any traditional use information that is presented during the proposed community hearing session. - C. Spagnuolo indicated that any information brought forward during the community hearing sessions would be recorded via transcripts, and the Panel would then review the transcripts to assist with their conclusions/ recommendations. It is unlikely that the Panel would manipulate the information provided and map it. G. Fitch indicated that it appears as though there is preliminary agreement to elicit information that is lacking in the EIS through preliminary community hearing sessions, with a second set of community hearing sessions to gather traditional use and cultural heritage information and information on the potential effects of the project on rights and title. P. Larcombe requested confirmation that the order of the hearings would proceed as follows: community hearing sessions dedicated to gathering information on the current use of lands and resources for traditional purposes; general hearing sessions; and community hearing sessions where First Nations could bring forward information on the effects of the project on rights and title. B. Stadfeld indicated that Canoe Creek would need additional capacity funding. B. Stadfeld also indicated that Canoe Creek wants to ensure that they can present to the Panel either directly or through legal counsel - G. Fitch confirmed that is the case. Chief Elkins questioned how confidentiality requests would work for the proposed community hearing sessions. - G. Fitch indicated that any requests for confidentiality would be dealt with through the existing Procedures for Requesting Confidentiality, as the proposed community hearing sessions are part of the public hearing. B. Battison brought up the statement in the Panel s Terms of Reference that the Panel would use its best efforts to complete the hearing within 30 days. He had a number of questions relating to timing and the logistics of the public hearing, including questions on the location of hearing, the length of the hearing; the number of hearing days, whether any limits would be imposed on the number of people allowed to present to the Panel and if any time limits would be imposed on presenters. - G. Fitch indicated that the logistics of the public hearing had not been determined at this stage. 4

8 Annex 1 B. Battison indicated that Taseko wants to move forward with the process and suggested that the proposed community hearing sessions could be held immediately, prior to the Panel making its sufficiency determination. - S. Nixon and B. Stadfeld indicated that the Panel s Terms of Reference needs to be examined in its entirety and that prior to moving forward to the public hearing, the Panel needs to determine the sufficiency of the information and provide notice of the start of the public hearing. G. Fitch asked First Nations if they had any preliminary indication, separate from the issue of the Panel s upcoming sufficiency determination, of how quickly they could be prepared to bring information on the current use of lands and resources forward to the Panel. - S. Nixon indicated that the TNG could be prepared to provide a response to the Panel on this question as early as next week. - M. Barr and B. Stadfeld both indicated that they would need to confer with their clients on this question before they could indicate a timeline. C. Spagnuolo summarized the major outcome of the call as follows: it is proposed that there would be one public hearing composed of a number of different sessions; the public hearing will follow the procedures outlined in the Public Hearing Procedures; the public hearing would consist of the following sessions: o community hearing session focussed on the gathering from First Nations information on the current use of lands and resources for traditional purposes, as this information was deficient in the environmental impact statement; o general and/or topic specific hearing sessions; and o community hearing sessions in which First Nations could bring forward information on the potential effects of the project on First Nations rights and title and on the current use of lands and resources for traditional purposes, as well as information on traditional use. G. Fitch committed to preparing and sending a letter summarizing the results of the conference call, which would serve as the record of the meeting and be posted on the public registry. The letter will also request that participants provide any comments on the proposed approach as soon as possible. 5

9 Annex 2 New Approach Proposed by Taseko Mines Ltd. to Gathering Information on the Current Use of Lands and Resources for Traditional Purposes by First Nation from Keith Clark (Legal Counsel, Taseko Mines Ltd.) to Gavin Fitch (Legal Counsel, Federal Prosperity Review Panel) and attached documents From: Keith Clark Sent: Tuesday, September 15, :41 PM To: Gavin Fitch Subject: PROSPERITY: Taseko's comments on Panel Proposal following Sept 14 Conference Call Hello Gavin This is the follow-up to the conference call yesterday at which time I advised you that I would forward you the citations for the cases that I referred to, and would also send you Taseko's comments on the Panel's proposal that was being discussed in that conference call. When Taseko reviewed the notes of that conference call and began to revise the Panel proposal, it developed a new approach which I think may achieve the objectives of the Panel and at the same time address the comments that were made by other participants during that conference call. Taseko has set out its thoughts in the draft proposal attached. Basically, this draft proposal does not require a community hearing, but affords the First Nations with a similar opportunity to provide the requested information in a less formal process. One significant advantage of this draft proposal is that the Panel can gather this information in a reasonable way, but avoid the somewhat awkward process of commencing and then suspending the public hearings. The draft proposal is attached, along with a map that is intended to be attached to it. I expect that you will forward this and attachments to all persons who were in attendance on the conference call, and whoever else you consider appropriate. I anticipate that another conference call to consider this draft proposal would be in order. The citations for the cases that I referred to are: Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.) Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 (SCC) The passages that I referred to during the conference call are in bold in the extracts from those cases, below: Halfway River Huddart JA [180] Because only the first nation will have information about the scope of their use of the land, and of the importance of the use of the land to their culture and identity, if the Sparrow guidelines are to organize the review of an administrative decision it makes good sense to require the first nation to establish the scope of the right at the first opportunity, to the decision-maker himself during the consultation he is required to undertake, so that he might satisfy his obligation to act constitutionally. It is only upon ascertaining the full scope of the right that an administrative decision maker can weigh that right against the interests of the various proposed users and 1

10 Annex 2 determine whether the proposed uses are compatible. This characterization is crucial to an assessment of whether a particular treaty or aboriginal right has been, or will be infringed. Thus, particularly in the context of a judicial review where the Court relies heavily upon the findings of the decision maker, a consideration of whether consultation has been adequate must precede any infringement/justification analysis using the Sparrow guidelines. [182] The requirement that a decision-maker under the Forest Act and the Forest Practices Code consult with a first nation that may be affected by his decision does not mean the first nation is absolved of any responsibility. Once the District Manager has set up an adequate opportunity to consult, the first nation is required to co-operate fully with that process and to offer the relevant information to aid in determining the exact nature of the right in question. The first nation must take advantage of this opportunity as it arises. It cannot unreasonably refuse to participate as the first nation was found to have done in Ryan et al v. Fort St. James Forest District (District Manager) (25 January, 1994) Smithers No. 7855, affirmed (1994), 40 B.C.A.C. 91. In my view, a first nation should not be permitted to provide evidence on judicial review it has had an appropriate opportunity to provide to the decision-maker, to support a petition asserting a failure to respect a treaty right. Haida 42 At all stages, good faith on both sides is required. The common thread on the Crown s part must be the intention of substantially addressing [Aboriginal] concerns as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people s right to be consulted. For your general information, the reason that the draft proposal limits the request for new information concerning cultural heritage resources to the mine site area is because the only other 'project component' where such cultural heritage would likely be found is in the proposed transmission corridor, and there is a separate process in place to gather that information and ensure that the final alignment of the transmission corridor avoids any such sites. Please also note that when considering the actual area of disturbance of the proposed transmission corridor, it is now defined to the point that it will be meters wide. I look forward to hearing from you. Regards Keith Keith Clark Lang Michener LLP 1500 Royal Centre 1055 West Georgia Street PO Box Vancouver, BC V6E 4N7 Canada Direct Line: <contact information removed> Direct Fax: <contact information removed> <contact information removed> 2

11 Annex 2 Attachment 1: Provision of Information from First Nations Requested in Deficiency Letter of June 24, 2009 PURPOSE: This process is intended to provide a further opportunity for First Nations to submit the information requested of them in the Panel s June 24, 2009 Deficiency Letter, in order that Taseko can complete its responses. INFORMATION REQUESTED: 1. Current use of lands and resources 3 for traditional purposes by aboriginal persons 2. New cultural heritage resources 4 in mine site area 5 HOW THIS INFORMATION MAY BE PROVIDED: 1. Written material - may be provided to Panel by October 13, Orally - provided to Panel during meetings with Panel in local communities over the period of October 13-16, The Panel requests that where the information is to be provided orally, a written summary of the information be provided to the Panel 5 days before it is presented orally. HOW INFORMATION WILL BE AVAILABLE TO PUBLIC The written material and the transcripts of the meetings will be posted on the website as soon as it is received. TASEKO S RESPONSES TO JUNE 24, 2009 DEFICIENCY LETTER Taseko will submit its remaining responses to the June 24, 2009 Deficiency Letter by October 22, 2009, taking into account the information gathered in this process. Taseko s responses will be posted on the website on October 23, PUBLIC COMMENT PERIOD The public may comment on Taseko s responses by October 30, The lands and resources are the Project Components identified on the attached map (Concentrate Loadout, Access Corridor, Proposed Transmission Corridor, Mine). 4 Cultural heritage resources are as defined on p. 84 of the EIS/Application Guidelines. 5 The mine site area is the Mine as shown on the attached map. It includes the 2.8 km of new access road. 3

12 Annex 2 Attachment 2: Map Taseko_Fig2_1_Project Components Gibraltar Mine Concentrate Loadout Facility near Macalister Soda Creek Miocene Williams Lake Redstone ve Concentrate Loadout Alexis Creek r Springhouse r Riske Creek Enterprise se C hi lk o Rive 97 ko La ke R o ad gm en t Ch il c ot i n Ri Hanceville ve r La c l a City/Town Highway Road BC Hydro Transmission Line River (1:2mil) Lake (1:2mil) Ha c h e Protected Area o Ta Se F R A S E Access Corridor Proposed Transmission Corridor (500m) Mine - Maximum Potential Disturbance Area (including fish compensation works) Tsilhqot'in Aboriginal Rights Area Tsilhqot'in Aboriginal Title Area Ri LEGEND 150 Mile House Figure 2-1 Proposed Prosperity Gold-Copper Project Components ek R R oa d Tat l ay ok o La ke Se g m en t Ta s Tatlayoko Lake I R HI V E R C Taseko Prosperity Mine SIte LK O LA Low er Tas ek o Lak e KE Upp er Tas ek o Lak e Big Bar Creek :975, Kilometres Map Pr epared by Jacque s Whitford A XYS Ltd. Data Sources: Province of British Columbia, Taseko Min es Ltd. Projecti on: UTM Zone 10, NAD 8 3 Produced by: Ryan Stohman n Veri fied by: Tony Dinne en Date: S epte mb er 1 5, Rev #: 01 MXD\FIGURES_E A\Informati onrequests\tasek O_Fig2_1 _ProjectCo mpo nents.mxd

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