The BC Supreme Court’s 2014 decision in Taku River is another example of the courts rejecting attempts by government and companies to narrow the applicability of the duty to consult and accommodate. In 2004 the Supreme Court of Canada in Taku River (the companion case to Haida Nation) 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 BC. 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 Chieftain 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 Chieftain 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 Chieftain. TRTFN filed for judicial review of the Province’s decision.
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 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 forty-five days’ notice to present whatever written submissions it wanted on the issue of whether the project had been substantially started.
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 River, the duty to consult is an ongoing obligation throughout the life of a project. When there is a new decision or conduct that might affect Aboriginal title and rights, the duty to consult is triggered.
Second, Taku River is an example of the lower courts responding to government and industry attempts to exploit even the slightest ambiguity in a Supreme Court decision. In its 2010 Rio Tinto decision, the Supreme Court, for the first time, considered the role of administrative tribunals, such as the National Energy Board, in the fulfillment of the Crown’s duty to consult and accommodate. Due to an uncharacteristic lack of precision in its language, the court unintentionally sowed the seeds for an argument that in order to trigger the duty to consult a government decision must result in specific physical impacts on the ground. Despite the fact that it was extremely doubtful that the Supreme Court intended to establish this principle, especially since it is incompatible with Haida Nation (the court’s foundational duty-to-consult decision), government and industry have repeatedly made the argument ever since. The BC Supreme Court’s decision in Taku River is another example of the courts rejecting this interpretation of Rio Tinto.