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Summary

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The Respondent, Redfern Resources Ltd.("Redfern") proposed to reopen a mine on the Taku River system, and to construct a 160 kilometre access road to the mine through a wilderness area in Northwestern British Columbia from Atlin to Tolsequah. The area to be traversed by the proposed road was the portion of the traditional territory of the Respondent, the Taku River Tlingit First Nation (the "Tlingits"), where their traditional land use activities were most concentrated. The area is not covered by a treaty but at the relevant time, was the subject of treaty negotiations between the Tlingits and the Governments of Canada and British Columbia. Redfern's proposal to reopen the mine was subject to an environmental review process under the Environmental Assessment Act. The Project Committee undertook the statutory review process in consultation with Canadian, British Columbia and Alaska government representatives, Tlingit representatives and the public over the course of three and a half years. The Committee submitted their Recommendations Report to the Provincial Ministers, recommending that the project proceed with certain mitigation strategies to accommodate the Tlingits' concerns. The Tlingits at all times asserted their aboriginal rights and their concerns about the impact of the proposed road on their culture and habitat and on their treaty negotiations and provided their own recommendations to the Ministers in an appendix to the report. Shortly afterwards, a Project Approval Certificate was issued by the Ministry of the Environment.

The Tlingits applied for judicial review. They claimed aboriginal title to a substantial area of north western British Columbia and stated that the road would interfere with their hunting fishing and gathering activities and with their aboriginal title. Prior to the hearing of the judicial review, an application was made for an order severing those issues raised in the petition for judicial review requiring proof of aboriginal rights or aboriginal title from the petition and referring them to the trial list. An order to this effect was granted and leave to appeal from that order was refused by Goldie J.A. and an application to review that decision was dismissed by the Court of Appeal on September 22, 1999. A determination of the aboriginal rights and title issue has not yet proceeded.

In the judicial review proceedings, the Chambers judge found that the Ministers should have been mindful of the possibility that their decision might infringe on aboriginal rights, and that they should have been more careful to ensure that they had effectively addressed the Tlingits' concerns. The Chambers judge set aside the Minsters' decision and directed a reconsideration, requiring the Project Committee to reconvene to discuss the Tlingits' concerns and to prepare a revised draft recommendations report. This order was appealed by Redfern and the Ministers while the Tlingits cross-appealed. The majority of the Court of Appeal dismissed the Ministers' appeal on the question of whether they owed a constitutional and fiduciary duty of consultation to the Tlingits who had asserted aboriginal title.

Lower Court Rulings