The Taku Decision
In January 2002 the BC Supreme Court tackled an issue with implications for every First Nation in the province when it upheld a ruling on a petition submitted by the Taku River Tlingit First Nation. The issue was the governments duty to consult with First Nations when making decisions which may affect their rights or aboriginal title. The court helped clarify the extent of that duty and the consequences for failing to meet it. On a grander scale, the case addressed a reoccurring question in non-treaty BC: who has the power to make decisions on lands where there is an aboriginal claim, and what if any, are the limitations to that power?
The Taku decision involved a Project Approval Certificate issued by the provincial government to Redfern Resources Ltd. allowing the company to reopen an abandoned mine in northwestern BC and build a massive new road through the unspoiled Taku River watershed to truck ore from the mine to a processing facility in Atlin.
The Project Approval Certificate was issued over the objections of representatives from the Taku River Tlingit First Nation who were concerned that the environmental consequences of the project would jeopardize their traditional rights. The Tlingit brought the issue before the court and argued the government had failed in its duty to properly consult with First Nations by granting interests to land where they claimed aboriginal rights without their consent.
At trial the court agreed with the Tlingit, quashed the certificate, and ordered the ministers involved to reconsider Redferns application once the Tlingits concerns had been meaningfully addressed. The province, unhappy with the ruling, appealed the decision arguing that aboriginal rights may be infringed by Crown sanctioned activities, and that until aboriginal rights or title are established in court the Crown is under no obligation to consult the Tlingit about decisions which may affect those rights.
Madam Justice Rowles, in her majority decision, dismissed both of the Crowns arguments. Justice Rowles said earlier decisions had quite clearly ruled there are limits on the Crowns ability to infringe upon aboriginal rights, and that where such an infringement is possible, the Crown must engage in consultation with the First Nation in question before doing so.
"In my opinion, the jurisprudence supports the view taken by the chambers judge that, prior to the issuance of the Project Approval Certificate, the Ministers of the Crown had to be mindful of the possibility that their decision might infringe aboriginal rights and, accordingly, to be careful to ensure that the substance of the Tlingits concerns had been addressed."
Justice Rowles decision forces the province to consult with First Nations before granting interests to lands where they may have rights, it also suggests the CHNs petition to quash the 2000 replacement of TFL 39 will be successful because the trial judge in that case found there had been no consultation with the Haida before the replacement was issued.
SpruceRoots Magazine - February 2002