Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., (2004) 206 B.C.A.C. 132 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court of Canada
• Case Date: November 18, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 206 B.C.A.C. 132 (SCC);2004 SCC 74

Taku River Tlingit v. Mine Project (2004), 206 B.C.A.C. 132 (SCC);

  338 W.A.C. 132

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] B.C.A.C. TBEd. NO.040

Norm Ringstad, in his capacity as the Project Assessment Director of 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 (appellants) v. Taku River Tlingit First Nation and Melvin Jack, on behalf of himself and all other members of the Taku River Tlingit First Nation, Redfern Resources Ltd., and Redcorp Ventures Ltd. formerly known as Redfern Resources Ltd. (respondents) and Attorney General of Canada, Attorney General of Quebec, Attorney General of Alberta, Business Council of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, British Columbia Wildlife Federation, Council of Forest Industries, Mining Association of British Columbia and Aggregate Producers Association of British Columbia, Doig River First Nation, First Nations Summit, and Union of British Columbia Indian Chiefs (intervenors)

(29146; 2004 SCC 74; 2004 CSC 74)

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

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.

November 18, 2004.

Summary:

Redfern obtained a project approval certificate respecting the re-opening of a mine. The Taku River Tlingit First Nation (TRTFN) objected to the 160 kilometre access road to the mine, which was to be constructed on lands which were subject to an as yet unproved TRTFN land title claim. The TRTFN petitioned under the Judicial Review Procedure Act to set aside the project approval certificate.

The British Columbia Supreme Court, in a judgment reported at (1999), 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 British Columbia Supreme Court, in a judgment reported at [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 remitted the matter to the responsible Ministers for reconsideration after a revised project committee report, which meaningfully addressed the aboriginals' concerns, was delivered to the Ministers. The Province appealed.

The British Columbia Court of Appeal, in a judgment reported (2002), 163 B.C.A.C. 164; 267 W.A.C. 164, dismissed the appeal, holding that the Province failed to meet its duty to consult with and accommodate the TRFTN. Southin, J.A., dissenting, held that the consultation undertaken was adequate. The Province appealed, submitting that there was no duty to consult prior to proof of an aboriginal right or land title claim and, if such duty did exist, it was met on the facts of the case.

The Supreme Court of Canada allowed the appeal. The court held that a duty to consult and accommodate did exist prior to proof of an aboriginal right or land title claim. However, the duty to consult was adequately met by the TRTFN's role in the environmental assessment process. The Province accommodated aboriginal concerns by adapting the environmental assessment process and the requirements made of Redfern in order to gain project approval.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - Redfern obtained a project approval certificate respecting the re-opening of a mine - The Taku River Tlingit First Nation (TRTFN) objected to the 160 kilometre access road to the mine, which was to be constructed on lands subject to an as yet unproved TRTFN land title claim - The Province submitted that there was no duty to consult prior to proof of an aboriginal right or land title claim and, if such duty did exist, it was met on the facts of the case - The Supreme Court of Canada held that the duty to consult and accommodate did exist prior to proof of an aboriginal right or land title claim, but was adequately met by the TRTFN's role in the environmental assessment process - The Province accommodated aboriginal concerns by adapting the environmental assessment process and imposing requirements on Redfern in order to gain project approval - See paragraphs 21 to 47.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown - The Supreme Court of Canada, for the reasons stated in Haida Nation v. British Columbia (Minister of Forests) et al., held that "this court has confirmed the existence of the Crown's duty to consult and, where indicated, to accommodate Aboriginal peoples prior to proof of rights or title claims." - See paragraph 21.

Cases Noticed:

Haida Nation v. British Columbia (Minister of Forests) et al. (2004), 327 N.R. 53; 206 B.C.A.C. 53; 338 W.A.C. 53; 2004 SCC 73, refd to. [para. 21].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 25].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 25].

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, refd to. [para. 25].

Statutes Noticed:

Environmental Assessment Act, R.S.B.C. 1996, c. 119, sect. 2 [para. 5]; sect. 10 [para. 8].

Counsel:

Paul J. Pearlman, Q.C., and Kathryn L. Kickbush, for the appellants;

Arthur C. Pape, Jean Teillet, and Richard B. Salter, for the respondents, Taku River Tlingit First Nation and Melvin Jack, on behalf of himself and all other members of the Taku River Tlingit First Nation;

Randy J. Kaardal and Lisa Hynes, for the respondents, Redfern Resources Ltd. and Redcorp Ventures Ltd., formerly known as Redfern Resources Ltd.;

Mitchell Taylor and Brian McLaughlin, for the intervenor, the Attorney General of Canada;

Pierre-Christian Labeau, for the intervenor, the Attorney General of Quebec;

Kurt J.W. Sandstrom and Stan Rutwind, for the intervenor, the Attorney General of Alberta;

Charles F. Willms and Kevin G. O'Callaghan, for the intervenors, Business Council of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, British Columbia Wildlife Federation, Council of Forest Industries, Mining Association of British Columbia and Aggregate Producers Association of British Columbia;

Jeffrey R.W. Rath and Allisun Rana, for the intervenor, Doig River First Nation;

Hugh M.G. Braker, Q.C., Anja Brown, Arthur C. Pape and Jean Teillet, for the intervenor, First Nations Summit;

Robert J.M. Janes and Dominique Nouvet, for the intervenor, Union of British Columbia Indian Chiefs.

Solicitors of Record:

Fuller Pearlman McNeil, Victoria, B.C., for the appellants;

Pape & Salter, Vancouver, B.C., for the respondents, Taku River Tlingit First Nation and Melvin Jack, on behalf of himself and all other members of the Taku River Tlingit First Nation;

Blake, Cassels & Graydon, Vancouver, B.C., for the respondents, Redfern Resources Ltd. and Redcorp Ventures Ltd., formerly known as Redfern Resources Ltd.;

Department of Justice, Vancouver, B.C., for the  intervenor,   the   Attorney  General  of Canada;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Alberta Justice, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Fasken Martineau DuMoulin, Vancouver, B.C., for the intervenors, Business Council of British Columbia, British Columbia and Yukon Chamber of Mines, British Columbia Chamber of Commerce, British Columbia Wildlife Federation, Council of Forest Industries, Mining Association of British Columbia and Aggregate Producers Association of British Columbia;

Rath & Company, Priddis, Alberta, for the intervenor, Doig River First Nation;

Braker & Company, Port Alberni, B.C., for the intervenor, First Nations Summit;

Cook Roberts, Victoria, B.C., for the intervenor, Union of British Columbia Indian Chiefs.

This appeal was heard on March 24, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada.

On November 18, 2004, McLachlin, C.J.C., delivered the following judgment in both official languages for the Supreme Court of Canada.