Dec 24, 2019
Osler partner Sander Duncanson tells The Lawyer’s Daily that a recent Federal Court of Appeal decision highlights a “real procedural fairness issue” with respect to environmental assessment reports and reviews. In his article, author John Schofield examines the December 18, 2019, decision in Taseko Mines Limited v. Canada 2019 FCA 319, in which the Federal Court of Appeal dismissed an appeal by Taseko Mines of a previous Federal Court decision dismissing “the company’s application for a judicial review of a federal review panel report” on its proposed gold and copper mine. The article also discusses a companion decision in Taseko Mines Limited v. Canada 2019 FCA 320, in which the Federal Court of Appeal rejected Taseko’s appeal of another Federal Court decision, which “dismissed its application for a judicial review of the federal government’s decision to reject the proposed mine based on the environment review panel’s findings.”
Sander, a partner in Osler’s Regulatory, Environmental, Aboriginal and Land Group, tells The Lawyer’s Daily that “after an environmental review panel reports its findings, the Constitution requires the federal government to consult with the First Nations that are involved.” He explains the implications of this process and these decisions.
“Essentially,” Sander tells The Lawyer’s Daily, “after you’ve gone through a multi-year public hearing process, then you go into the black box of politics.
“There is a real procedural fairness issue there when you have this private process that the (project) proponent is excluded from. As a proponent counsel, I do find this troubling.”
Sander also says that he expects more court challenges to arise in the coming years “based on this perceived lack of fairness.”
For more information and background, read John Schofield’s article “Federal Court of Appeal ruling leaves legal status of environmental reports in question,” which was originally published in The Lawyer’s Daily.