Court rulings affect industry

In November 2004 the Supreme Court of Canada ruled on two cases in British Columbia that could have major implications for mining and other resource companies doing business in areas where aboriginal treaties have not been concluded.

The court was asked to rule whether or not the Crown and industry have a duty to consult with aboriginal groups who claim, but do not have title to, land. In its decision, the court said the provincial and federal governments do have a legal duty to consult meaningfully with aboriginal peoples regarding their traditional territories, even when there has been no final decision about aboriginal rights and title. The Crown cannot delegate that duty to third parties, such as private industry seeking government approval to conduct activities on Crown land.

In one of the cases, the court ruled that the provincial government must consult with the Haida nation and accommodate their interests when renewing tree farm licences issued in an area claimed by them as aboriginal title lands.

The other case involved the Taku River Tlingit and the Tulsequah Chief mine project of Redfern Resources. Here, the court found that the provincial government had consulted and accommodated in the environmental review process, but it emphasized that the Crown’s duty continues until the Tlingit claim is resolved.

In the wake of the decisions, there is some uncertainty about the requirements governments may put in place around consultations.

This point was emphasized by lawyer Charles Willms of Fasken Martineau DuMoulin at a special session organized by the Prospectors & Developers Association of Canada in January. Willms represented several groups with intervenor status in the appeal, including the British Columbia & Yukon Chamber of Mines. Speaking in Toronto to some 60 representatives of the mining industry, aboriginal groups, government, and the legal profession, Willms outlined the key parts of the Supreme Court ruling and the implications of the judgment. (The presentation is available to PDAC members at www.pdac.ca.)

He said the court rejected any theory that private parties have a duty to consult with or seek a reasonable accommodation with aboriginals who assert rights. But he added that business and industry in Canada should ensure that the provinces and federal government observe their obligations. Failure to do so could lead to a delay in, or the prevention of, important land and resource use developments.

— The preceding is from In Brief, a quarterly publication of the Prospectors & Developers Association of Canada.