Taku River Tlingit Supreme Court Decision Upholds Government Position but no "Comprehensive Go-Ahead" for Tulsequah Chief Project

On November 18th, the Supreme Court of Canada rejected the Crown's appeal in the Haida Nation case. At the same time, it ruled on the Taku River Tlingit v. BC case, upholding British Columbia's appeal but rejecting 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.

"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 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.

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.

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."

Law firm Pape & Salter, which specialises in aboriginal rights law, has published a "plainspeak" summary of the decision.