The Duty to Consult as an Ongoing Obligation

By Bruce McIvor

Case comment on Taku River Tlingit First Nation v. British Columbia (Minister of Environment), 2014 BCSC 1278

Time to catch up on important decisions released over the summer.

The B.C. Supreme Court’s decision in Taku is another example of the courts rejecting attempts by government and companies to narrow the applicability of the duty to consult and accommodate. 

What it is about

In 2004 the Supreme Court of Canada in Taku (the companion case to Haida) held that the Province had adequately consulted the Taku River Tlingit First Nation (TRTFN) before issuing an environmental assessment certificate (EAC) for the Tulsequah Chief Mine in northwestern B.C. Importantly, the Supreme Court assured TRTFN that, as part of the Crown’s ongoing duty to consult, they could expect to be consulted throughout the permitting, approval and licensing process for the proposed mine.

Skip ahead six years. By 2010 Redfern, the mine proponent, had gone into receivership and the property had been acquired by Chieftan Metals. The EAC had been renewed for a second and final five year term and was set to expire in 2012 unless the Province decided the project had been ‘substantially started’ as required under the provincial Environmental Assessment Act. If the project was deemed to have been substantially started, the EAC would be in effect for the life of the project unless cancelled or suspended.

In 2012 Chieftan applied for a determination that the project had been substantially started. Despite the fact that the bulk of the work done on the site consisted of tree clearing and completing a gravel airstrip, the Province agreed with Chieftan. TRTFN filed for judicial review of the Province's decision.

What the Court said

The Court concluded that ‘project’ under the provincial Environmental Assessment Act means physical activities affecting the land environmentally. To be substantially started, a project needs to have been started in its essentials, i.e. in a real and tangible way. In deciding whether a project has been substantially started, the decision-maker should focus on what has been done since the EAC was first issued and especially on whether there have been physical activities that have a long-term effect on the site.

The Court then considered whether the Province had breached its constitutional duty to consult TRTFN. The Province had not consulted TRTFN—in fact, it had not even given TRTFN notice of the pending decision. TRTFN had only found out about the decision by accident months after it had been made.

The Court rejected the Province’s argument that the duty to consult had not been triggered because the decision would have no new physical effects. The Court concluded that the decision would directly affect what would happen at the project site. A negative decision would mean that the project would not be built. A positive decision meant the EAC would be in effect for the life of the project, subject only to the Province’s supervisory powers. Consequently, the Court concluded that the duty to consult had been triggered and that the Province had breached the duty by not consulting TRTFN.

Finally, the Court also considered TRTFN’s natural justice argument and concluded that because of the Province’s long history of consulting with TRTFN before decisions were made that might affect their constitutional rights, the Province had violated the doctrine of legitimate expectations by failing to consult about the EAC.

The Court ordered that the decision be made again and that TRTFN have 45 days notice to present whatever written submissions it wanted on the issue of whether the project had been substantially started.

Why it matters

The decision is important for two main reasons. First, it is another example of the courts rejecting the Crown’s attempts to evade its constitutional obligations by arguing that a decision was made long ago and there is nothing new to consider. As the Supreme Court of Canada stated in Taku, the duty to consult is an ongoing obligation throughout the life of a project. When there is a new decision or conduct that may affect Aboriginal title and rights, the duty to consult is triggered.

Second, ever since the Supreme Court’s decision in Rio Tinto, governments and proponents have argued that the government decision in question must result in specific physical impacts on the ground. The B.C. Supreme Court’s recent decision in Taku is another example of the courts rejecting this interpretation of Rio Tinto.

Read the full decision.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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