Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., (2002) 163 B.C.A.C. 164 (CA)

• Judge: Southin, Rowles and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 31, 2002
• Jurisdiction: British Columbia
• Citations: (2002), 163 B.C.A.C. 164 (CA);2002 BCCA 59

Taku River Tlingit v. Mine Project (2002), 163 B.C.A.C. 164 (CA);

    267 W.A.C. 164

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. JA.062

The Taku River Tlingit First Nation and Melvin Jack, on behalf of himself and all other members of the Taku River Tlingit First Nation (petitioners/respondents/appellants on cross appeal) v. Norm Ringstad, in his capacity as the Project Assessment Director for the Tulsequah Chief Mine Project, Sheila Wynn, in her capacity as the Executive Director, Environmental Assessment Office, the Minister of Environment, Lands and Parks, and the Minister of Energy and Mines and Minister responsible for Northern Development (respondents/appellants/respondents on cross-appeal) and Redfern Resources Ltd. (respondent/respondent/respondent on cross-appeal)

(CA027488)

The Taku River Tlingit First Nation and Melvin Jack, on behalf of himself and all other members of the Taku River Tlingit First Nation (petitioners/respondents/appellants on cross appeal) v. Redfern Resources Ltd. (respondent/appellant/respondent on cross appeal) and Norm Ringstad, in his capacity as the Project Assessment Director for the Tulsequah Chief Mine Project, Sheila Wynn, in her capacity as the Executive Director, Environmental Assessment Office, The Minister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister responsible for Northern Development (respondents/respondents/respondents on cross appeal)

(CA027500) (2002 BCCA 59)

Indexed As: Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al.

British Columbia Court of Appeal

Southin, Rowles and Huddart, JJ.A.

January 31, 2002.

Summary:

Redfern obtained a project approval certifi­cate respecting the re-opening of a mine on lands which were the subject of an abo­rig­inal land claim. The aboriginals petitioned under the Judicial Review Procedure Act to set aside the certificate.

A judge of the British Columbia Supreme Court, in Chambers, in a decision reported in 9 B.C.T.C. 213, directed that the issues concerning the determination of the claims of aboriginal right and title be referred to the trial list. The aborigi­nals applied for leave to appeal.

The British Columbia Court of Appeal, per Goldie, J.A., in a decision reported in 128 B.C.A.C. 120; 208 W.A.C. 120, dismissed the application for leave. The aboriginals applied for a review of Goldie, J.A.'s, deci­sion.

The British Columbia Court of Appeal, in a decision reported in 131 B.C.A.C. 13; 214 W.A.C. 13, dismissed the application for review.

The British Columbia Supreme Court, in a decision reported in [2000] B.C.T.C. 438, granted a declaration that the Recommenda­tion Report of the project committee and the Referral by the Executive Director of the Environmental Assessment Office did not conform to legal requirements. The court quashed the Ministers' decision to issue the project approval certificate. The court re­ferred the matter back to the responsible Ministers for reconsideration after a revised project committee report, which meaningful­ly addressed the aboriginals' concerns, was delivered to the Ministers. The Crown appealed. The aboriginals cross-appealed. Meanwhile, the reconsideration process, as ordered, was in progress.

The aboriginals sought, under s. 18 of the Court of Appeal Act, a stay of the recon­sideration pending the appeal and cross-appeal. The aboriginals also applied for leave to amend their cross-appeal and for these applications to be heard on short notice.

The British Columbia Court of Appeal, per Huddart, J.A., in a decision reported in 145 B.C.A.C. 242; 237 W.A.C. 242, granted the application for short leave and for amend­ment, but dis­missed the application for a stay.

The British Columbia Court of Appeal, Southin, J.A., dissenting, dismissed the appeal. The court directed the matter be remitted to the Minis­ters.

Forests and Forest Products - Topic 2439

Forest regulation - Licensing - Effect of aboriginal title claim - [See Indians, Inuit and Métis - Topic 5563 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - [See Indians, Inuit and Métis - Topic 5563 ].

Indians, Inuit and Métis - Topic 5563

Lands - Land claims - Claim for owner­ship - Procedure - A company obtained a proj­ect approval certificate under the En­viron­mental Assessment Act respecting re-open­ing a mine (and build­ing an access road) on Crown lands subject to an abo­riginal land claim - The aborigi­nals par­tici­pated in an envi­ron­mental review pro­cess con­cern­ing the effects of this project on their way of life - Appro­val was granted with­out their concerns being met - The British Columbia Court of Appeal affirmed that the province owed a consti­tutional and fiduciary duty to con­sult with the aborigi­nals, prior to the es­tablish­ment of any aboriginal right or title to the affected area - A decision involving abo­riginal rights must reflect the division of powers under the Constitution Act 1867, and the Crown's obligations under the Constitution Act 1982, s. 35(1) - See paragraphs 107 to 108, 142 to 201.

Cases Noticed:

MacMillan Bloedel Ltd. v. Galiano Island Trust Committee et al. (1995), 63 B.C.A.C. 81; 104 W.A.C. 81; 10 B.C.L.R.(3d) 121 (C.A.), refd to. [para. 21].

Secretary of State for Education and Science v. Tameside Metropolitan Bor­ough Council, [1976] 3 All E.R. 665 (H.L.), refd to. [para. 23].

Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 65].

Liversidge v. Anderson, [1941] 3 All E.R. 338 (H.L.), refd to. [para. 79].

Ocean Port Hotel Ltd. v. Liquor Control Licensing Branch (B.C.) (2001), 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193 (S.C.C.), refd to. [para. 80].

Save Britain's Heritage v. Secretary of State for the Environment and others, [1991] 2 All E.R. 10 (H.L.), refd to. [para. 81].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 178 D.L.R.(4th) 666; 64 B.C.L.R.(3d) 206 (C.A.), refd to. [para. 93].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, consd. [paras. 97, 141].

Canadian Energy Services Ltd. v. Gotaverken Energy Systems Ltd., [1990] B.C.J. No. 1336 (C.A.), affd. [1990] B.C.J. No. 1976; 42 C.L.R. 50 (C.A.), refd to. [para. 127].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, consd. [para. 141].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, consd. [para. 141].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, consd. [para. 141].

Paul v. Forest Appeals Commission (B.C.) et al. (2001), 154 B.C.A.C. 254; 252 W.A.C. 254; 89 B.C.L.R.(3d) 210; 201 D.L.R.(4th) 251 (C.A.), supplementary reasons [2001] B.C.A.C. Uned. 168 (C.A.), refd to. [para. 149].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 159].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 173].

Nowegijick v. Minister of National Rev­enue, [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 173].

Authors and Works Noticed:

Broom's Legal Maxims (10th Ed. 1939), p. 642 [para. 79].

Counsel:

Paul J. Pearlman, Q.C., for the appellants, Norm Ringstad, Sheila Wynn, The Min­ister of Environment, Lands and Parks and the Minister of Energy and Mines and Minister Responsible for Northern Development and the Attorney General for British Columbia;

Randal J. Kaardal and Lisa D. Hynes, for the appellant, Redfern Resources Ltd.;

Arthur C. Pape and Beverley-Jean M. Teillet, for the respondents, Taku River Tlingit First Nation and Melvin Jack.

These appeals were heard before Southin, Rowles and Huddart, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 25, 26 and 27, 2001. The decision of the court was delivered on January 31, 2002, when the following opinions were filed:

Southin, J.A., dissenting - see paragraphs 1 to 103;

Rowles, J.A. (Huddart, J.A., concurring) - see paragraphs 104 to 208.