Supreme Court of Canada –  3 S.C.R. 550
This decision was delivered on the same day as Haïda. It is one of the most referred to cases in Aboriginal peoples’ consultation and accommodation.
The Supreme Court establishes that the Crown does not have to create an independent consultation process for Aboriginals. Consultation can be included in broader environmental evaluation processes.
Did the province correctly consult and accommodate the Taku River Tlingit First Nation?
The province fulfilled its duty to consult and accommodate, because it was willing to address the First Nation’s concerns, and that it took into account the seriousness of the project’s potential effects and the strength of the claim (unanimous decision).
Between: the Crown of British Columbia (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)
And: 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.
Interveners: Canada, Quebec, 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, Aggregate Producers Association of British Columbia, Doig River First Nation, First Nations Summit, and Union of British Columbia Indian Chiefs
In 1994, Redfern Resources Ltd. (a mining company) requested an authorization from the British Columbia government to re-open an old mine (Tulsequah Chief Mine). Meanwhile, the Taku River Tlingit First Nation was in the process of negotiating a modern treaty with the province and the federal government. Under the Environmental Assessment Act, a process of environmental assessment had to be instigated, which was separate from the treaty negotiation. The Taku River Tlingit First Nation took part in the procedures and opposed Redfern’s proposal to build a road that would pass through a section of their traditional territory on which they claimed Aboriginal rights and title.
In 1998, Redfern Resources Ltd. obtained the required certificate from the B.C. government. In response to the Taku River Tlingit First Nation’s concerns, the province decided to finance a wildlife monitoring program in order to assess the environmental impacts of the new road on this First Nation’s traditional territory.
The Taku River Tlingit First Nation also wanted jurisdiction over the approval of licences and to control the road’s access by third parties. These demands were refused by the environmental assessment board, which deferred them to the treaty negotiation process. In 1999, the Taku River Tlingit First Nation petitioned B.C. Supreme Court via a judicial review procedure on the basis of their Aboriginal rights and title.
Taku River Tlingit First Nation: The duty to consult was triggered since it was involved in a treaty negotiation process.
British Columbia: The duty to consult is only triggered once the rights have been proven. Before such rights are established, the province owes a “duty of fair dealing,” which it respected through its environmental assessment procedure.
British Columbia Supreme Court (1999): The government should consider Aboriginal rights when its projects have the potential of infringing upon these rights.
British Columbia Court of Appeal (2002): The provincial government did not fulfill its duty to consult and accommodate the Taku River Tlingit First Nation.
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish
On the basis of the decision in Haida, the Province of B.C. had an obligation to consult that arose out of the principle of the honour of the Crown in its dealings with Aboriginal people. This obligation should be interpreted in a large and liberal manner, meaning that it is triggered not only when the Aboriginal title or rights’ claim is proven but at the moment a governmental body has knowledge of the potential existence of an Aboriginal right or title and is aware that one of its actions could affect it. In the circumstances of this case, the strength of the Taku River Tlingit First Nation’s claim and the seriousness of the potentially adverse effect of Redfern Resources’ demand upon it triggered the province’s duty to consult.
The extent of this duty depends on the gravity of the potential negative effects on the claim of an Aboriginal title or right. In the case at hand, they seemed serious since the projected road passed through an area that was important for the First Nation’s economic development, and its claim was strong. Therefore, the Crown had the obligation to go further than the consultation stage, meaning that it had a duty to accommodate the Taku River Tlingit First Nation.
The consultation conducted by the Crown in keeping with the Environmental Assessment Act was adequate since it lasted three and a half years, and since Redfern Resources hired experts and both parties exchanged information and studies. This gave the First Nation a reasonable opportunity to participate and express their concerns. As for the accommodation, there must be a balance between the First Nation’s interests and the opposing social interests of the Crown. In this case, the Taku River Tlingit First Nation could not ask for a complete suspension of the project until it was thoroughly satisfied. By agreeing to the creation of a committee to study the environmental impacts of the road’s construction, the Crown had duly performed its duty of accommodation.
The First Nation’s petition must be rejected.
The Taku River decision has had direct repercussions on the current federal environmental assessment of the Tulsequah Chief mine and road project. When the ruling was issued, the project still required federal approval through the federal environmental screening process in order to continue. In response, the Canadian Environmental Assessment Agency (CEAA) asked Fisheries and Oceans Canada to conduct an environmental screening before it gave its final approval of the mining project (CEAA, 2008). The ruling settled the question that Canada had a clear obligation to accommodate the Taku River Tlingit’s interests.
Legal scholars elaborated that the duty to accommodate imposed a substantive outcome on the consultation process conducted by the Crown, meaning that it should be used as a tool to favour reconciliation between First Nations and the Canadian state (Potes, 2006: 28).
In view of the Supreme Court hearings in the Taku River case, the CEAA adopted Interim Principles for considering Aboriginal traditional knowledge in environmental assessments conducted under the Canadian Environmental Assessment Act. The Interim Principles’ objectives are to provide guidance to environmental assessment professionals on how to consider Aboriginal traditional knowledge in their evaluations, project planning and resource management. The document defines Aboriginal traditional knowledge as knowledge held by, and unique to, First Peoples that is transmitted over the generations and builds upon the social, economic, environmental, spiritual and political changes that affect First Peoples. The principles are said to be voluntary and are to be used as guidelines in determining whether or not Aboriginal traditional knowledge is desirable and appropriate in the case at hand. A final and more detailed framework will be established by the Agency in collaboration with the Aboriginal Advisory Committee (CEAA, 2009). In doing so, the Canadian government will ensure discussions with representatives of concerned Aboriginal organizations in the elaboration of legislation and policy affecting them.
In British Columbia, the Environmental Assessment Act does establish a procedure for collecting information and consulting First Nations. If there is a proposal to develop any traditional lands, the British Columbia government must consult with the First Nation concerned and give it an opportunity to participate in the environment assessment of the project (Environmental Assessment Act, sect. 29.1). The Environmental Assessment Office has also published a Fairness and Service Code which devotes a whole section to its dealings with First Nations. It reaffirms the obligation to consult as per Haida and to also plan for funding for the concerned communities in order for them to participate in the Environmental Assessment Office’s review process (Environmental Assessment Office, 2009: 12).
Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R. 388
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 S.C.R. 650
Environmental Assessment Act, S.B.C. 2002, c. 43, s. 29.1
Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68
Canadian Environmental Assessment Agency. 2008. Notice of Commencement of an Environmental Assessment: Tulsequah Chief Project – Air Cushion Barge Access Alternative. On-line. http://www.ceaa.gc.ca/050/details-eng.cfm?evaluation=44530&ForceNOC=Y. Consulted December 14, 2009.
Canadian Environmental Assessment Agency. 2009. Considering Aboriginal traditional knowledge in environmental assessments conducted under the Canadian Environmental Assessment Act – Interim Principles. On-line. http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=4A795E76-1. Consulted December 9, 2009.
Environmental Assessment Office of British Columbia. 2009. Fairness and Service Code. Victoria: Government of British Columbia. On-line. http://www.eao.gov.bc.ca/pub/pdf/ EAO_FairnessAndServiceCode_Jan09.pdf. Consulted December 9, 2009.
Potes Veronica. 2006. The Duty to Accommodate Aboriginal Peoples Rights: Substantive Consultation?, in Journal of Environmental Law and Practice 17: 27-45.
St-Hilaire Maxime and Sophie Theriault. 2003. Les arrêts Taku River et Haida Nation devant la Cour suprême : des précisions imminentes concernant la mise en oeuvre du droit qu’ont les autochtones d’être consultés?”, in Revue du Barreau 63: 163-175.