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February 4, 2013

Aboriginal title claim going before the Supreme Court

The $1 billion New Prosperity Mine proposal and other major resource projects in Canada may have more difficulty reaching the construction stage, after the country's highest court hears a B.C. First Nation's Aboriginal title claim.

“The decision of the Supreme Court of Canada to hear the B.C. Tsilhqot’in appeal in the Vickers case will most certainly impact the New Prosperity Mine proposal,” said Marilyn Baptiste, the elected chief of the Xeni Gwet’in, one of the six bands that comprise the Tshilhqot’in Nation. “Given the fact the Environmental Impact Statement (EIS) submitted by the company was sent back to them with more than 50 deficiencies and one of these deficiencies was the impact on Aboriginal rights.”

The Supreme Court of Canada announced on Jan. 24 that it will hear an Aboriginal title claim brought by the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation.

The Tsilhqot’in are appealing a B.C. Court of Appeal ruling made in June 2012.

The case could set a massive precedent because it would be the first time the Supreme Court has made a decision on land title.

“At the Supreme Court, we will continue to tackle the most important issue for us and for all First Nations – our Aboriginal title to the land,” said Baptiste.

The B.C. Court of Appeal ruling largely upheld the ruling of the late Justice David Vicker in November 2007, by confirming the Aboriginal right of the Tsilhqot’in people to hunt, trap and trade in the region.

It also barred wide-scale industrial logging.

B.C. Supreme Court Justice Vickers ruled that the Tsilhqot’in have proven Aboriginal title to about 200,000 square hectares around Williams Lake.

However, the Tsilhqot’in Nation disagree with the Court of Appeal’s view that Aboriginal title is limited to specific, intensively used small sites, and not the core hunting and trapping grounds.

For this reason, the Supreme Court case will appeal the B.C. Court of Appeal decision to deny Aboriginal title to an area, which includes the proposed Prosperity Mine site.

The proposed project is a large open pit gold-copper mine, located about 125-km south west of Williams Lake.

It is the largest undeveloped gold-copper deposit in Canada.

The project involves the construction of an onsite mill and support infrastructure, a tailings storage facility, a 125-km long electrical transmission line, explosives factory and magazine, and an access road.

The environmental assessment for the project could be influenced by the Supreme Court case because it will identify “definite tracts of land” to which Aboriginal title applies.

Next, it will determine whether Aboriginal title can be granted only for specific sites or whether title can be granted to larger tracts of land.

The Canadian Environmental Assessment Agency (CEAA) rejected the original proposal for the construction of the mine in October 2010.

The agency said the project would have an adverse effect on fish and fish habitat, on grizzly bears, on navigation, on the use of lands and resources for traditional purposes by First Nations and on established Tsilhqot’in Aboriginal rights.

Despite this fact, the CEAA ruled in November 2011 that the gold-copper mine project will undergo a new environmental assessment.

The CEAA is conducting a panel process, which includes holding public hearings and preparing its report, which is expected to take no more than 12 months, in total.

Leaders of the Tsilhqot’in Nation are disappointed by the decision to go ahead with another review on the rejected proposal.

The EIS submitted by Taseko Mines Ltd for the new Prosperity mine in September 2012 said the Tsilhqot’in would no longer be able to exercise their hunting and fishing rights until after the mine closed and the land was reclaimed.

Even then, the restored landscape would be permanently altered.

The Tsilhqot’in stated that they would likely not use the area due to the perception of contamination.

As a result, Bill Ross, chair of the Federal Review Panel for the project asked Taseko in December 2012 to address this deficiency in their proposal by providing further information about the impact on Aboriginal rights to hunt and trap.

Taseko disputed the Federal Review Panel’s recommendations and said the revised statement addresses concerns about cumulative impacts related to fish and grizzly bears.

The Tsilhqot’in people are angry about the new review process and believe the revised proposal is just a repackaged version of a previous option.

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