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
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
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.
Applied: Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73; referred to: R. v. Sparrow,  1 S.C.R. 1075; R. v. Nikal,  1 S.C.R. 1013; R. v. Gladstone,  2 S.C.R. 723; Delgamuukw v. British Columbia,  3 S.C.R. 1010.
Statutes and Regulations Cited
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,  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,  2 C.N.L.R. 312, 91 C.R.R. (2d) 260,  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,  B.C.J. No. 1301 (QL), 2000 BCSC 1001. Appeal allowed.
For complete Supreme Court Judgement