TLINGIT SUPREME COURT DECISION CREATES NEW OBLIGATIONS FOR GOVERNMENT
BC Appeal Upheld, But No "Comprehensive Go-Ahead" For Tulsequah Chief Project

(Ottawa) In a mixed decision today, the Supreme Court of Canada upheld British Columbia's appeal in Taku River Tlingit v. BC, but rejected as "impoverished" the Crown's submission on its obligations to First Nations. The decision also created new duties for the BC and Canada in the assessment and permitting of the Tulsequah Chief mine and road proposal. With National Grand Chief Phil Fontaine and British Columbia First Nations Summit Grand Chief Edward John standing with him in the Supreme Court, Taku River Tlingit Spokesperson John Ward reflected on what the decision would mean for the Taku River Tlingit First Nation (TRTFN) and other First Nations. The First Nation of less than 500 people from the far northwest corner of BC has been locked in a David and Goliath struggle with the combined forces of government and extractive industry since 1998. A decision in a case involving the Haida Nation came down simultaneously, but the Crown's appeal in that case was rejected.

"The Court recognized some important standards for accommodation that we will be holding British Columbia and Canada to," said John Ward, Spokesperson for the TRTFN. "We have always argued that Land Use Planning had to happen before this project goes ahead, and the decision supports that. We still believe that the way forward is through cooperation and dialogue and we ask that government and industry accept this ruling and our longstanding invitation to work constructively with us."

The decision contradicts public statements by the mine proponent, Redfern Resources, by making it clear that "Issuance of a project approval certificate does not constitute a comprehensive 'go-ahead' for all aspects of a project." Redfern had been claiming that with its Project Approval Certificate, it had everything it needs to go ahead with the project. Both the Tlingit and Haida decisions made it clear that government has the lead responsibility to address First Nations concerns and that authority cannot be delegated to industry. "This company has been pushing us to resolve outstanding Tlingit concerns by talking to them, but this decision supports our view that the responsibility for recognizing and accommodating our concerns rests solely with the governments of BC and Canada."

The decision was clear that the "permitting process will require further information and analysis of Redfern, and that negotiation with the TRTFN may continue to yield accommodation in response." The decision also states that the environmental assessment process is not enough to address the concerns of the Tlingit, recognizing the need for "a joint management authority [to] be established" and "treaty negotiations or land use strategy planning."

"We asked the Province to enter into land use planning with us back in 2002. They snubbed us and chose to ram through a new Project Approval instead. This decision reminds BC and Redfern that there is a lot more still to be done. A project approval isn't enough to allow this project to proceed and land use planning has to be part of the equation. We've come full circle, but we now have an excellent Vision and Management Directions Document as the basis for land use planning when BC comes back to the table," said Ward.

The Supreme Court was asked to consider whether the Crown has obligations to consult and accommodate before Aboriginal Peoples prove Aboriginal Rights and Title in litigation. The case arose after British Columbia forced through an approval of the Tulsequah Chief mine and road project without considering the documented and substantive negative impacts it would have on the TRTFN. The TRTFN challenged BC's project approval, and had it struck down in a judicial review. The Tlingits won again when the case was heard in the British Columbia Court of Appeal. At the Supreme Court, the Justices strongly rejected BC's position, stating that "the Province's submissions present an impoverished vision of the honour of the Crown and all that it implies." They upheld the Province's appeal, however, concluding that the Project Committee established under the BC Environmental Assessment Act was sufficient to accommodate Tlingit concerns up to that point.

The decision has immediate bearing on the ongoing federal environmental assessment of the Tulsequah Chief mine and road proposal. That project still needs federal approval through the federal environmental screening process to proceed, and this decision confirms that Canada will have to demonstrably accommodate Taku River Tlingit concerns. The Justices acknowledged that "the potential for negative derivative impacts on the TRTFN's [land] claim is high" so that burden of proof on Canada will be considerable.

"We're going to continue to pressure Canada to live up to its obligations to uphold the constitutionally protected rights of First Nations and its commitment to sustainability under the Canadian Environmental Assessment Act," said Ward. "The only way to create certainty for everyone is for government and industry to pull their heads out of the sand and recognize that First Nations aren't going away. We will never be severed from our land and this decision doesn't change that. The Taku River Tlingit Nation will continue to be the stewards of our Territory, like we always have been."

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For more information contact
John Ward, TRTFN Spokesperson at
604-454-7050 or 250.651.7900