Rivers Without Borders

Rivers Without Borders

February 03, 2014 09:00 ET

Legal Challenge From Taku River Tlingit First Nation Threatens Major Permit for Chieftain Metals' Proposed Tulsequah Chief Mine

Lawsuit Could Void Environmental Assessment Certificate, Halt Mine

JUNEAU, ALASKA--(Marketwired - Feb. 3, 2014) - A lawsuit filed on December 17 by the Taku River Tlingit First Nation naming the British Columbia Minister of Environment, Environmental Assessment Office and Chieftain Metals Inc. as respondents could void the Environmental Assessment Certificate for the proposed Tulsequah Chief mine. The legal challenge asserts the Environmental Assessment Office (EAO) erred in its determination that granted the Certificate for the life of the mine, and asks that the decision be quashed, causing the Certificate to expire. Without the Certificate the Tulsequah Chief project cannot proceed.

"This legal action could invalidate the key permit for Tulsequah Chief and stop the project," said Chris Zimmer of Rivers Without Borders. "This lawsuit is the latest, and possibly most serious, obstacle to a mine that has been controversial and faced major problems from the beginning. After years of acid mine pollution, failure to move the proposal significantly forward, and local and international opposition, it's clear that the Tulsequah Chief simply isn't viable - legally, economically, politically or environmentally."

The Certificate is arguably the most important permit for a Canadian mine. Under BC law, mining projects must be "substantially started" within five years of issuance of the Certificate, with the possibility of a one-time extension of up to five years. If a project is deemed substantially started, the Certificate becomes permanent for the life of the mine. If a project has not been substantially started within the time limit, the Certificate expires and the project cannot proceed. The expiration of the Certificate also means other existing government approvals and permits for the mine are void, including the permit for the access road, and the government is prohibited from issuing any new permits. A new Environmental Assessment may be required to obtain a new Certificate.

The Certificate for the Tulsequah Chief was issued in 2002 to Redfern Resources, the previous proponent of the mine, and states that it can be cancelled if "construction of the Project is not, in the reasonable opinion of the Minister, substantially started within five years of the date of issue of this Certificate." Redfern received a five-year extension in 2007, but declared bankruptcy in 2009. The Certificate was transferred to Chieftain after it purchased the project out of receivership. Chieftain asked the EAO for a determination of "substantially started" on April 19, 2012. On June 12, 2012 the EAO responded with a letter stating "on May 30, 2012, the Associate Deputy Minister of EAO determined that the Project has been substantially started. This determination means that the Environmental Assessment (EA) Certificate remains effective for the life of the Project."

The lawsuit also asserts that, despite a Supreme Court ruling requiring formal government to government consultation, the BC government did not consult with the Taku River Tlingit First Nation in making the May 2012 "substantially started" decision.

"It's not surprising to see a legal challenge because the Taku River Tlingit were not consulted or even notified of this determination," said Zimmer. "There has been no significant construction at the Tulsequah Chief site and most of the mine components permitted in the Certificate haven't even been started because Chieftain hasn't had the financing. I can't see how anyone could reasonably conclude the Tulsequah Chief has been substantially started."

The proposed Tulsequah Chief mine is in the heart of the Taku River Tlingit's traditional territory on the banks of the Tulsequah River, a major tributary to the Taku River, and just upstream of the Alaska/BC border. The mine was operated in the 1950s, but was then abandoned until Redfern tried to re-develop it starting in the 1990s. The Taku watershed is the transboundary region's most productive salmon river and of great cultural and economic importance to the Tlingit people. The proposed mine has the potential to harm commercial, sport and subsistence fisheries and the Tlingit way of life, and has caused controversy for over two decades.

For additional information on the legal challenge please see http://trtfn.yikesite.com/tulsequah-chief-project and http://www.ecojustice.ca/media-centre/press-releases/taku-river-tlingit-first-nation-ecojustice-announce-litigation-over-validity-of-tulsequah-chief-mine-eao-certificate.

Rivers Without Borders is a project of Tides Center.

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