A mining company sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation, 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 their traditional territory. The Province granted the project approval certificate against which the Tlingit brought a motion to quash.
In chambers, the 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 Tlingit's concerns. She set aside the decision and directed a reconsideration. The Court of Appeal agreed, finding that the Province had failed to meet its duty to consult with and accommodate the Taku River Tlingit.
- What are the limits of the duty of the Crown to consult and accomodate aboriginal peoples?
McLachlin, writing for a unanimous court, held that the province has discharged their duty. The province was aware of the Taku River Tlingit claim which was relatively strong and supported by a prima facie case. The potential for negative impacts was high and thus the Tlingit were entitled to more than minimum consultation under the circumstances, but rather to accommodation.
Looking at the facts, the First Nation 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 an agreement with the Tlingit, and there was no evidence that it breached its good faith obligation.
- Where there is a duty to consult, as long as consultation is done meaningfully then the duty is discharged – there is no ultimate duty to reach an agreement.
- Accommodation requires that the aboriginal concerns be reasonably balanced with other concerns in the decision-making process.