Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74

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,

Aggregate Producers Association of British Columbia,

Doig River First Nation, First Nations Summit, and Union of

British Columbia Indian Chiefs                                                                     Interveners

Indexed as:  Taku River Tlingit First Nation v. British Columbia (Project Assessment Director)

Neutral citation:  2004 SCC 74.

File No.:  29146.

2004:  March 24; 2004:  November 18.

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

on appeal from the court of appeal for british columbia

Crown — Honour of Crown — Duty to consult and accommodate Aboriginal peoples — Whether Crown has duty to consult and accommodate Aboriginal peoples prior to making decisions that might adversely affect their as yet unproven Aboriginal rights and title claims — If so, whether consultation and accommodation engaged in by Province prior to issuing project approval certificate was adequate to satisfy honour of Crown. 

Since 1994, a mining company has sought permission from the British Columbia government to re-open an old mine.  The Taku River Tlingit First Nation (“TRTFN”), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the company’s plan to build a road through a portion of the TRTFN’s traditional territory.  The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title.  The chambers judge concluded that the decision makers had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN’s concerns. She set aside the decision and directed a reconsideration.  The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN.

Held:  The appeal should be allowed.

The Crown’s duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown, which derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.  The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1)  of the Constitution Act, 1982 .  The duty to consult varies with the circumstances.  It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.  This in turn may lead to a duty to accommodate Aboriginal concerns.  Responsiveness is a key requirement of both consultation and accommodation.  The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

The Crown’s obligation to consult the TRTFN was engaged in this case.  The Province was aware of the TRTFN’s title and rights claims and knew that the decision to reopen the mine had the potential to adversely affect the substance of the TRTFN’s claims. The TRTFN’s claim is relatively strong, supported by a prima facie case, as attested to by its inclusion in the Province’s treaty negotiation process.  While the proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title, the potential for negative derivative impacts on the TRTFN’s claims is high.  On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.  It is impossible, however, to provide a prospective checklist of the level of consultation required.

In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate.  The TRTFN was part of the Project Committee, participating fully in the environmental review process.  Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns.  The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN.  Finally, it is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN.

Cases Cited

Applied:  Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73; referred to:  R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

Statutes and Regulations Cited

Constitution Act, 1982, s. 35(1) .

Environmental Assessment Act, R.S.B.C. 1996, c. 119 [rep. 2002, c. 43, s. 58], ss. 2, 7, 9, 10, 14 to 18, 19(1), 21, 22, 23, 29, 30(1).

Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

Mine Development Assessment Act, S.B.C. 1990, c. 55.

APPEAL from a judgment of the British Columbia Court of Appeal (2002), 211 D.L.R. (4th) 89, [2002] 4 W.W.R. 19, 163 B.C.A.C. 164, 267 W.A.C. 164, 98 B.C.L.R. (3d) 16, 42 C.E.L.R. (N.S.) 169, [2002] 2 C.N.L.R. 312, 91 C.R.R. (2d) 260, [2002] B.C.J. No. 155 (QL), 2002 BCCA 59, affirming a decision of the British Columbia Supreme Court (2000), 77 B.C.L.R. (3d) 310, 34 C.E.L.R. (N.S.) 209, [2000] B.C.J. No. 1301 (QL), 2000 BCSC 1001.  Appeal allowed.

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 intervener the Attorney General of Canada.

Pierre‑Christian Labeau, for the intervener the Attorney General of Quebec.

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

Charles F. Willms and Kevin G. O’Callaghan, for the interveners 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 intervener Doig River First Nation.

Hugh M. G. Braker, Q.C., and Anja Brown, for the intervener First Nations Summit.

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

The judgment of the Court was delivered by

The Chief Justice —

I.       Introduction

1                                   This case raises the issue of the limits of the Crown’s duty to consult with and accommodate Aboriginal peoples when making decisions that may adversely affect as yet unproven Aboriginal rights and title claims. The Taku River Tlingit First Nation (“TRTFN”) participated in a three-and-a-half-year environmental assessment process related to the efforts of Redfern Resources Ltd. (“Redfern”) to reopen an old mine.  Ultimately, the TRTFN found itself disappointed in the process and in the result. 

2                                   I conclude that the Province was required to consult meaningfully with the TRTFN in the decision-making process surrounding Redfern’s project approval application. The TRTFN’s role in the environmental assessment was, however, sufficient to uphold the Province’s honour and meet the requirements of its duty. Where consultation is meaningful, there is no ultimate duty to reach agreement. Rather, accommodation requires that Aboriginal concerns be balanced reasonably with the potential impact of the particular decision on those concerns and with competing societal concerns.  Compromise is inherent to the reconciliation process. In this case, the Province accommodated TRTFN concerns by adapting the environmental assessment process and the requirements made of Redfern in order to gain project approval. I find, therefore, that the Province met the requirements of its duty toward the TRTFN.

II.      Facts and Decisions Below

3                                   The Tulsequah Chief Mine, operated in the 1950s by Cominco Ltd., lies in a remote and pristine area of northwestern British Columbia, at the confluence of the Taku and Tulsequah Rivers.  Since 1994, Redfern has sought permission from the British Columbia government to reopen the mine, first under the Mine Development Assessment Act, S.B.C. 1990, c. 55, and then, following its enactment in 1995, under the Environmental Assessment Act, R.S.B.C. 1996, c. 119. During the environmental assessment process, access to the mine emerged as a point of contention. The members of the TRTFN, who participated in the assessment as Project Committee members, objected to Redfern’s plan to build a 160-km road from the mine to the town of Atlin through a portion of their traditional territory. However, after a lengthy process, project approval was granted on March 19, 1998 by the Minister of Environment, Lands and Parks and the Minister of Energy and Mines (“Ministers”).

4                                   The Redfern proposal was assessed in accordance with British Columbia’s Environmental Assessment Act.  The environmental assessment process is distinct from both the land use planning process and the treaty negotiation process, although these latter processes may necessarily have an impact on the assessment of individual proposals. The following provisions are relevant to this matter.

5                                   Section 2 sets out the purposes of the Act, which are:

(a)   to promote sustainability by protecting the environment and fostering a sound economy and social well-being,

(b)   to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural, heritage and health effects of reviewable projects,

(c)   to prevent or mitigate adverse effects of reviewable projects,

(d)   to provide an open, accountable and neutrally administered process for the assessment

(i) of reviewable projects, and

                                                                   . . .

(e)   to provide for participation, in an assessment under this Act, by the public, proponents, first nations, municipalities and regional districts, the government and its agencies, the government of Canada and its agencies and British Columbia’s neighbouring jurisdictions.

6                                   “The proponent of a reviewable project may apply for a project approval certificate” under s. 7 of the Act, providing a “preliminary overview of the reviewable project, including” potential effects and proposed mitigation measures. If the project is accepted for review, “the executive director must establish a project committee” for the project (s. 9(1)). The executive director must invite a number of groups to nominate members to the committee, including “any first nation whose traditional territory includes the site of the project or is in the vicinity of the project” (s. 9(2)(d)).  Under s. 9(6), the committee “may determine its own procedure, and provide for the conduct of its meetings”.

7                                   Redfern’s proposal was accepted for review under the former Mine Development Assessment Act, and a project committee was established in November 1994. Invited to participate were the TRTFN, the British Columbia, federal, Yukon, United States, and Alaskan governments, as well as the Atlin Advisory Planning Commission.  When the Environmental Assessment Act was instituted, the Project Committee was formally constituted under s. 9. Working groups and technical sub-committees were formed, including a group to deal with Aboriginal concerns and a group to deal with issues around transportation options. The TRTFN participated in both of these groups. A number of studies were commissioned and provided to the Project Committee during the assessment process.

8                                   The project committee becomes the primary engine driving the assessment process. It must act in accordance with the purposes of a project committee, set out in s. 10 as:

(a)   to provide to the executive director, the minister and the responsible minister expertise, advice, analysis and recommendations, and

(b)   to analyze and advise the executive director, the minister and the responsible minister as to,

(i)     the comments received in response to an invitation for comments under this Act,

(ii)    the advice and recommendations of the public advisory committee, if any, established for that reviewable project,

(iii)    the potential effects, and

(iv)   the prevention or mitigation of adverse effects.

9                                   The proponent of the project is required to engage in public consultation and distribution of information about the proposal (ss. 14-18). After the period for receipt of comments has expired, the executive director must either “refer the application to the [Ministers] . . . for a decision . . . or order that a project report be prepared . . . and that the project undergo further review” (s. 19(1)). If a project report is to be prepared, the executive director must prepare draft project report specifications indicating what information, analysis, plans or other records are relevant to an effective assessment, on the recommendation of the project committee (s. 21(a)). Sections 22 and 23 set out a non-exhaustive list of what matters may be included in a project report.  These specifications are provided to the proponent  (s. 21(b)).

10                               In this case, Redfern was required to produce a project report, and draft project report specifications were provided to it.  Additional time was granted to allow the executive director and Project Committee to prepare specifications.

11                               When the proponent submits a project report, the project committee makes a recommendation to the executive director, whether to accept the report for review or to withhold acceptance if the report does not meet the specifications. Redfern submitted a multiple volume project report in November 1996. A time limit extension was granted to allow extra time to complete the review of the report. In January 1997, the Project Committee concluded that the report was deficient in certain areas, and Redfern was required to address the deficiencies.

12                               Through the environmental assessment process, the TRTFN’s concerns with the road proposal became apparent.  Its concerns crystallized around the potential effect on wildlife and traditional land use, as well as the lack of adequate baseline information by which to measure subsequent effects. It was the TRTFN’s position that the road ought not to be approved in the absence of a land use planning strategy and away from the treaty negotiation table. The environmental assessment process was unable to address these broader concerns directly, but the project assessment director facilitated the TRTFN’s access to other provincial agencies and decision makers.  For example, the Province approved funding for wildlife monitoring programs as desired by the TRTFN (the Grizzly Bear Long-term Cumulative Effects Assessment and Ungulate Monitoring Program).  The TRTFN also expressed interest in TRTFN jurisdiction to approve permits for the project, revenue sharing, and TRTFN control of the use of the access road by third parties. It was informed that these issues were outside the ambit of the certification process and could only be the subject of later negotiation with the government.

13                               While Redfern undertook to address other deficiencies, the Environmental Assessment Office’s project assessment director engaged a consultant acceptable to the TRTFN, Mr. Lindsay Staples, to perform traditional land use studies and address issues raised by the TRTFN. Redfern submitted its upgraded report in July 1997, but was requested to await receipt of the Staples Report. The Staples Report, prepared by August 1997, was provided for inclusion in the Project Report. The Project Report was distributed for review in September 1997, with public comments received for a 60-day period thereafter. However, the TRTFN, upon reviewing the Staples Report, voiced additional concerns. In response, the Environmental Assessment Office engaged Staples to prepare an addendum to his report, which was completed in December 1997 and also included in the Project Report from that time forward.

14                               Under the Act, the executive director, upon accepting a project report, may refer the application for a project approval certificate to the Ministers for a decision (s. 29).  “In making a referral . . . the executive director must take into account the application, the project report and any comments received about them” (s. 29(1)).  “A referral . . . may be accompanied by recommendations of the project committee” (s. 29(4)).  There is no requirement under the Act that a project committee prepare a written recommendations report.

15                               In this case, the staff of the Environmental Assessment Office prepared a written Project Committee Recommendations Report, the major part of which was provided to committee members for review in early January 1998.  The final 18 pages were provided as part of a complete draft on March 3, 1998. The majority of the committee members agreed to refer the application to the Ministers and to recommend approval for the project subject to certain recommendations and conditions. The TRTFN did not agree with the Recommendations Report, and instead prepared a minority report stating their concerns with the process and the proposal.

16                               After a referral under s. 29 is made, “the ministers must consider the application and any recommendations of the project committee” (s. 30(1)(a)), in order to either “issue a project approval certificate”, “refuse to issue the . . . certificate”, or “refer the application to the Environmental Assessment Board for [a] public hearing” (s. 30(1)(b)). Written reasons are required (s. 30(1)(c)).

17                               The executive director referred Redfern’s application to the Ministers on March 12, 1998. The referral included the Project Committee Recommendations Report, the Project Approval Certificate in the form that it was ultimately signed, and the TRTFN Report (A.R., vol. V, p. 858).  In addition, the Recommendations Report explicitly identified TRTFN concerns and points of disagreement throughout, as well as suggested mitigation measures. The Ministers issued the Project Approval Certificate on March 19, 1998, approving the proposal subject to detailed terms and conditions.

18                               Issuance of project approval certification does not constitute a comprehensive “go-ahead” for all aspects of a project. An extensive “permitting” process precedes each aspect of construction, which may involve more detailed substantive and information requirements being placed on the developer.  Part 6 of the Project Committee’s Recommendations Report summarized the requirements for licences, permits and approvals that would follow project approval in this case. In addition, the Recommendations Report made prospective recommendations about what ought to happen at the permit stage, as a condition of certification. The Report stated that Redfern would develop more detailed baseline information and analysis at the  permit stage, with continued TRTFN participation, and that adjustments might be required to the road route in response.  The majority also recommended creation of a resource management zone along the access corridor, to be in place until completion of a future land use plan; the use of regulations to control access to the road; and creation of a Joint Management Committee for the road with the TRTFN.  It recommended that Redfern’s future Special Use Permit application for the road be referred to the proposed Joint Management Committee.

19                               The TRTFN brought a petition in February 1999 under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to quash the Ministers’ decision to issue the Project Approval Certificate on administrative law grounds and on grounds based on its Aboriginal rights and title.  Determination of its rights and title was severed from the judicial review proceedings and referred to the trial list, on the Province’s application.  The chambers judge on the judicial review proceedings, Kirkpatrick J., concluded that the Ministers should have been mindful of the possibility that their decision might infringe Aboriginal rights, and that they had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN’s concerns ((2000), 77 B.C.L.R. (3d) 310, 2000 BCSC 1001). She also found in the TRTFN’s favour on administrative law grounds. She set aside the decision to issue the Project Approval Certificate and directed a reconsideration, for which she later issued directions.

20                               The majority of the British Columbia Court of Appeal dismissed the Province’s appeal, finding (per Rowles J.A.) that the Province had failed to meet its duty to consult with and accommodate the TRTFN ((2002), 98 B.C.L.R. (3d) 16, 2002 BCCA 59).   Southin J.A., dissenting, would have found that the consultation undertaken was adequate on the facts. Both the majority and the dissent appear to conclude that the decision complied with administrative law principles. The Province has appealed to this Court, arguing that no duty to consult exists outside common law administrative principles, prior to proof of an Aboriginal claim. If such a duty does exist, the Province argues, it was met on the facts of this case.

III.    Analysis

21                               In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, heard concurrently with this case, 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. The Crown’s obligation to consult the TRTFN was engaged in this case.  The Province was aware of the TRTFN’s claims through its involvement in the treaty negotiation process, and knew that the decision to reopen the Tulsequah Chief Mine had the potential to adversely affect the substance of the TRTFN’s claims.

22                               On the principles discussed in Haida, these facts mean that the honour of the Crown placed the Province under a duty to consult with the TRTFN in making the decision to reopen the Tulsequah Chief Mine. In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty.  The TRTFN was part of the Project Committee, participating fully in the environmental review process. It was disappointed when, after three and a half years, the review was concluded at the direction of the Environmental Assessment Office. However, its views were put before the Ministers, and the final project approval contained measures designed to address both its immediate and long-term concerns.  The Province was under a duty to consult.  It did so, and proceeded to make accommodations. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN.

A.     Did the Province Have a Duty to Consult and if Indicated Accommodate the TRTFN?

23                               The Province argues that, before the determination of rights through litigation or conclusion of a treaty, it owes only a common law “duty of fair dealing” to Aboriginal peoples whose claims may be affected by government decisions. It argues that a duty to consult could arise after rights have been determined, through what it terms a “justificatory fiduciary duty”. Alternatively, it submits, a fiduciary duty may arise where the Crown has undertaken to act only in the best interests of an Aboriginal people. The Province submits that it owes the TRTFN no duty outside of these specific situations.

24                               The Province’s submissions present an impoverished vision of the honour of the Crown and all that it implies. As discussed in the companion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1)  of the Constitution Act, 1982 , which recognizes and affirms existing Aboriginal rights and titles.  Section 35(1)  has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1) .

25                               As discussed in Haida, what the honour of the Crown requires varies with the circumstances.  It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions:  R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Gladstone, [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at para. 168.  The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement.  That understanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive it of its role in the reconciliation process. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1) . The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them.  This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns.  Responsiveness is a key requirement of both consultation and accommodation.

26                               The federal government announced a comprehensive land claims policy in 1981, under which Aboriginal land claims were to be negotiated. The TRTFN submitted its land claim to the Minister of Indian Affairs in 1983.  The claim was accepted for negotiation in 1984, based on the TRTFN’s traditional use and occupancy of the land. No negotiation ever took place under the federal policy; however, the TRTFN later began negotiation of its land claim under the treaty process established by the B.C. Treaty Commission in 1993. As of 1999, the TRTFN had signed a Protocol Agreement and a Framework Agreement, and was working towards an Agreement in Principle. The Province clearly had knowledge of the TRTFN’s title and rights claims.

27                               When Redfern applied for project approval, in its efforts to reopen the Tulsequah Chief Mine, it was apparent that the decision could adversely affect the TRTFN’s asserted rights and title.  The TRTFN claim Aboriginal title over a large portion of northwestern British Columbia, including the territory covered by the access road considered during the approval process.  It also claims Aboriginal hunting, fishing, gathering, and other traditional land use activity rights which stood to be affected by  a road through an area in which these rights are exercised.  The contemplated decision thus had the potential to impact adversely the rights and title asserted by the TRTFN.

28                               The Province was aware of the claims, and contemplated a decision with the potential to affect the TRTFN’s asserted rights and title negatively. It follows that the honour of the Crown required it to consult and if indicated accommodate the TRTFN in making the decision whether to grant project approval to Redfern, and on what terms.

B.      What Was the Scope and Extent of the Province’s Duty to Consult and Accommodate the TRTFN?

29                               The scope of the duty to consult is “proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (Haida, supra, at para. 39).  It will vary with the circumstances, but always requires meaningful, good faith consultation and willingness on the part of the Crown to make changes based on information that emerges during the process.

30                               There is sufficient evidence to conclude that the TRTFN have prima facie Aboriginal rights and title over at least some of the area that they claim.  Their land claim underwent an extensive validation process in order to be accepted into the federal land claims policy in 1984.  The Department of Indian Affairs hired a researcher to report on the claim, and her report was reviewed at several stages before the Minister validated the claim based on the TRTFN’s traditional use and occupancy of the land and resources in question. In order to participate in treaty negotiations under the B.C. Treaty Commission, the TRTFN were required to file a statement of intent setting out their asserted territory and the basis for their claim. An Aboriginal group need not be accepted into the treaty process for the Crown’s duty to consult to apply to them. Nonetheless, the TRTFN’s claim was accepted for negotiation on the basis of a preliminary decision as to its validity. In contrast to the Haida case, the courts below did not engage in a detailed preliminary assessment of the various aspects of the TRTFN’s claims, which are broad in scope.  However, acceptance of its title claim for negotiation establishes a prima facie case in support of its Aboriginal rights and title.

31                               The potentially adverse effect of the Ministers’ decision on the TRTFN’s claims appears to be relatively serious.  The chambers judge found that all of the experts who prepared reports for the review recognized the TRTFN’s reliance on its system of land use to support its domestic economy and its social and cultural life (para. 70).  The proposed access road was only 160 km long, a geographically small intrusion on the 32,000-km² area claimed by the TRTFN.  However, experts reported that the proposed road would pass through an area critical to the TRTFN’s domestic economy: see, for example, Dewhirst Report (R.R., vol. I, at pp. 175, 187, 190 and 200) and Staples Addendum Report (A.R., vol. IV, at pp. 595-600, 604-5 and 629).  The TRTFN was also concerned that the road could act as a magnet for future development. The proposed road could therefore have an impact on the TRTFN’s continued ability to exercise its Aboriginal rights and alter the landscape to which it laid claim. 

32                               In summary, the TRTFN’s claim is relatively strong, supported by a prima facie case, as attested to by its acceptance into the treaty negotiation process. The proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title; however, the potential for negative derivative impacts on the TRTFN’s claims is high. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than the minimum receipt of notice, disclosure of information, and ensuing discussion.  While it is impossible to provide a prospective checklist of the level of consultation required, it is apparent that the TRTFN was entitled to something significantly deeper than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation.

C.     Did the Crown Fulfill its Duty to Consult and Accommodate the TRTFN?

33                               The process of granting project approval to Redfern took three and a half years, and was conducted largely under the Environmental Assessment Act.  As discussed above, the Act sets out a process of information gathering and consultation.  The Act requires that Aboriginal peoples whose traditional territory includes the site of a reviewable project be invited to participate on a project committee.

34                               The question is whether this duty was fulfilled in this case.  A useful framework of events up to August 1st, 2000 is provided by Southin J.A. at para. 28 of her dissent in this case at the Court of Appeal.  Members of the TRTFN were invited to participate in the Project Committee to coordinate review of the project proposal in November 1994 and were given the original two-volume submission for review and comment: Southin J.A., at para. 39.  They participated fully as Project Committee members, with the exception of a period of time from February to August of 1995, when they opted out of the process, wishing instead to address the issue through treaty talks and development of a land use policy. 

35                               The Final Project Report Specifications (“Specifications”) detail a number of meetings between the TRTFN, review agency staff and company representatives in TRTFN communities prior to February 1996:  Southin J.A., at para. 41.  Redfern and TRTFN met directly several times between June 1993 and February 1995 to discuss Redfern’s exploration activities and TRTFN’s concerns and information requirements.  Redfern also contracted an independent consultant to conduct archaeological and ethnographic studies with input from the TRTFN to identify possible effects of the proposed project on the TRTFN’s traditional way of life:  Southin J.A., at para. 41.  The Specifications document TRTFN’s written and oral requirements for information from Redfern concerning effects on wildlife, fisheries, terrain sensitivity, and the impact of the proposed access road, of barging and of mine development activities:  Southin J.A., at para. 41. 

36                               The TRTFN declined to participate in the Road Access Subcommittee until January 26, 1998.  The Environmental Assessment Office appreciated the dilemma faced by the TRTFN, which wished to have its concerns addressed on a broader scale than that which is provided for under the Act.  The TRTFN was informed that not all of its concerns could be dealt with at the certification stage or through the environmental assessment process, and assistance was provided to it in liaising with relevant decision makers and politicians.

37                               With financial assistance the TRTFN participated in many Project Committee meetings.  Its concerns with the level of information provided by Redfern about impacts on Aboriginal land use led the Environmental Assessment Office to commission a study on traditional land use by an expert approved by the TRTFN, under the auspices of an Aboriginal study steering group.  When the first Staples Report failed to allay the TRTFN’s concerns, the Environmental Assessment Office commissioned an addendum. The TRTFN notes that the Staples Addendum Report was not specifically referred to in the Recommendations Report eventually submitted to the Ministers. However, it did form part of Redfern’s Project Report.

38                               While acknowledging its participation in the consultation process, the TRTFN argues that the rapid conclusion to the assessment deprived it of meaningful consultation. After more than three years, numerous studies and meetings, and extensions of statutory time periods, the assessment process was brought to a close in early 1998.  The Environmental Assessment Office stated on February 26 that consultation must end by March 4, citing its work load. The Project Committee was directed to review and sign off on the Recommendations Report on March 3, the same day that it received the last 18 pages of the report.  Appendix C to the Recommendations Report notes that the TRTFN disagreed with the Recommendations Report because of certain “information deficiencies”: Southin J.A., at para. 46.  Thus, the TRTFN prepared a minority report that was submitted with the majority report to the Ministers on March 12. Shortly thereafter, the project approval certification was issued.

39                               It is clear that the process of project approval ended more hastily than it began.  But was the consultation provided by the Province nonetheless adequate?  On the findings of the courts below, I conclude that it was.

40                               The chambers judge was satisfied that any duty to consult was satisfied until December 1997, because the members of the TRTFN were full participants in the assessment process (para. 132).  I would agree.  The Province was not required to develop special consultation measures to address TRTFN’s concerns, outside of the process provided for by the Environmental Assessment Act, which specifically set out a scheme that required consultation with affected Aboriginal peoples.

41                               The Act permitted the Committee to set its own procedure, which in this case involved the formation of working groups and subcommittees, the commissioning of studies, and the preparation of a written recommendations report.  The TRTFN was at the heart of decisions to set up a steering group to deal with Aboriginal issues and a subcommittee on the road access proposal.  The information and analysis required of Redfern were clearly shaped by TRTFN’s concerns.  By the time that the assessment was concluded, more than one extension of statutory time limits had been granted, and in the opinion of the project assessment director, “the positions of all of the Project Committee members, including the TRTFN had crystallized” (Affidavit of Norman Ringstad, at para. 82 (quoted at para. 57 of the Court of Appeal’s judgment)).  The concerns of the TRTFN were well understood as reflected in the Recommendations Report and Project Report, and had been meaningfully discussed.  The Province had thoroughly fulfilled its duty to consult.

42                               As discussed in Haida, the process of consultation may lead to a duty to accommodate Aboriginal concerns by adapting decisions or policies in response. The purpose of s. 35(1)  of the Constitution Act, 1982  is to facilitate the ultimate reconciliation of prior Aboriginal occupation with de facto Crown sovereignty. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims.  The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.  Balance and compromise will then be necessary.

43                               The TRTFN in this case disputes the adequacy of the accommodation ultimately provided by the terms of the Project Approval Certificate.   It argues that the Certificate should not have been issued until its concerns were addressed to its satisfaction, particularly with regard to the establishment of baseline information.

44                               With respect, I disagree. Within the terms of the process provided for project approval certification under the Act, TRTFN concerns were adequately accommodated.  In addition to the discussion in the minority report, the majority report thoroughly identified the TRTFN’s concerns and recommended mitigation strategies, which were adopted into the terms and conditions of certification.  These mitigation strategies included further directions to Redfern to develop baseline information, and recommendations regarding future management and closure of the road. 

45                               Project approval certification is simply one stage in the process by which a development moves forward.  In Haida, the Province argued that although no consultation occurred at all at the disputed, “strategic” stage, opportunities existed for Haida input at a future “operational” level. That can be distinguished from the situation in this case, in which the TRTFN was consulted throughout the certification process and its concerns accommodated. 

46                               The Project Committee concluded that some outstanding TRTFN concerns could be more effectively considered at the permit stage or at the broader stage of treaty negotiations or land use strategy planning.  The majority report and terms and conditions of the Certificate make it clear that the subsequent permitting process will require further information and analysis of Redfern, and that consultation and negotiation with the TRTFN may continue to yield accommodation in response.  For example, more detailed baseline information will be required of Redfern at the permit stage, which may lead to adjustments in the road’s course.  Further socio-economic studies will be undertaken.  It was recommended that a joint management authority be established.  It was also recommended that the TRTFN’s concerns be further addressed through negotiation with the Province and through the use of the Province’s regulatory powers.  The Project Committee, and by extension the Ministers, therefore clearly addressed the issue of what accommodation of the TRTFN’s concerns was warranted at this stage of the project, and what other venues would also be appropriate for the TRTFN’s continued input. It is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if indicated, accommodate the TRTFN.

IV.    Conclusion

47                               In summary, I conclude that the consultation and accommodation engaged in by the Province prior to issuing the Project Approval Certificate for the Tulsequah Chief Mine were adequate to satisfy the honour of the Crown. The appeal is allowed.  Leave to appeal was granted on terms that the appellants pay the party and party costs of the respondents TRTFN and Melvin Jack for the application for leave to appeal and for the appeal in any event of the cause.  There will be no order as to costs with respect to the respondents Redfern Resources Ltd. and Redcorp Ventures Ltd.

Appeal allowed.

Solicitors for the appellants:  Fuller Pearlman & McNeil, Victoria.

Solicitors 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:  Pape & Salter, Vancouver.

Solicitors for the respondents Redfern Resources Ltd. and Redcorp Ventures Ltd. formerly known as Redfern Resources Ltd.:  Blake Cassels & Graydon, Vancouver.

Solicitor for the intervener the Attorney General of Canada:  Department of Justice, Vancouver.

Solicitor for the intervener the Attorney General of Quebec:  Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General of Alberta:  Alberta Justice, Edmonton.

Solicitors for the interveners 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:  Fasken Martineau DuMoulin, Vancouver.

Solicitors for the intervener Doig River First Nation:  Rath & Company, Priddis, Alberta.

Solicitors for the intervener First Nations Summit:  Braker & Company, Port Alberni, British Columbia.

Solicitors for the intervener Union of British Columbia Indian Chiefs:  Cook Roberts, Victoria.