RAVEN - Respecting Aboriginal Values and Environmental Needs

Taku River Tlingin Nation vs. BC

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

Year: 2004

Court: Supreme Court of Canada

Citation: 2004 SCC 74

Location: BC

TAGS: Duty to Consult; Mineral/Mining/Natural Resources

The duty to consult arises whenever the Crown has knowledge that an Aboriginal rights or title claim may be adversely impacted by a proposed activity. 

Summary:

In this case, a mining company sought approval from the government of British Columbia to reopen a mine. During the environmental assessment process conducted by the Province, the Taku River Tlingit First Nation opposed the company’s plan to build a road through their traditional territory. Despite Tlingit’s concerns, the Province granted the project approval. The Tlingit Nation brought a motion to quash the approval. The trial judge and Court of Appeal agreed that the Tlingit’s concerns had not been adequately addressed, and therefore that the Province had not met its duty to consult and accommodate. However, the Supreme Court of Canada found that the Province had fulfilled their duty. 

Why this Case Matters: 

This decision specified when the duty to consult is triggered. The duty to consult arises not only upon proof of an Aboriginal claim, but also whenever the Crown has knowledge of a potential Aboriginal rights or title claim that may be adversely impacted by a proposed activity. The SCC said that the content of the duty will vary depending on the seriousness of the potential adverse effects. 

This decision also set out the limits of the duty of the Crown to consult and accommodate. The SCC said that the duty is fulfilled as long as consultation is done meaningfully even if no agreement is reached. 

Supreme Court Judgment:

https://www.canlii.org/en/ca/scc/doc/2004/2004scc74/2004scc74.html?autocompleteStr=Taku%20&autocompletePos=1

Go Deeper:

http://riverswithoutborders.org/home/wp-content/uploads/2007/04/plainspeak_post_scc.pdf

https://www.lawsonlundell.com/media/news/236_Negotiatorarticle.pdf

http://www.cba.org/cba/cle/PDF/Constit09_Sterling_paper.pdf

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