Summary

38548

Chief Roger William on his own behalf and on behalf of all other members of the Xeni Gwet'in First Nations Government and the Tsilhqot'in Nation v. Attorney General of British Columbia, et al.

(British Columbia) (Civil) (By Leave)

Keywords

Constitutional law - Aboriginal peoples (s. 35), Aboriginal law, Aboriginal rights, Duty to accommodate, Crown law, Honour of the Crown, Administrative law, Judicial review - Constitutional law — Aboriginal peoples — Aboriginal law — Aboriginal rights — Duty to consult and accommodate — Crown law — Honour of the Crown — Administrative law — Judicial review — What is the legal framework for assessing the substantive outcome of consultation and adequacy of accommodation in the context of judicial review of administrative decisions that limit s. 35 rights? — How does the Haida framework for consultation and accommodation apply in the context of proven and conceded Aboriginal rights? — How does the honour of the Crown require the Crown to consult on how affected rights should be balanced against the objectives of a proposed activity? — How should serious impacts to the cultural, spiritual, and experiential aspects of Aboriginal rights be taken into account by the duty to consult and accommodate?.

Summary

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The Xeni Gwet’in First Nations Government is a “band” within the meaning of the Indian Act, RSC 1985, c. I 5, and is a sub group of the Tsilhqot’in Nation. Roger William is former chief of the band. The members of the Tsilhqot’in Nation hold proven Aboriginal hunting, trapping, and trade rights throughout the area 125 kilometres southwest of Williams Lake, BC that includes Teztan Biny (Fish Lake), Y’anah Biny (Little Fish Lake) and Nabas (the surrounding area). In addition to hunting and trapping, the Tsilhqot’in counduct fishing, gathering, spiritual and ceremonial activities in this area; the area serves as a resting place for a number of the Tsilhqot’in peoples’ ancestors. Taseko Mines Limited holds a mineral lease and mineral claims to this same area; their tenure rights remain in place until at least 2035. Taseko’s proposed plan for a mine (named the Prosperity Project) underwent provincial and federal environmental assessments. The province issued an environmental assessment certificate. The federal government concluded that the Prosperity Project would have significant adverse environmental effects and rejected the Prosperity Project. Taseko revised its mining design and applied for an amendment to its provincial environmental certificate. The province granted a five year extension on its environmental certificate which expires on January 14, 2020 if the project has not “substantially started” by that date. Taseko also re applied to the federal government for approval. In February 2014, the federal government rejected the redesigned project. Taseko then applied to the province for permits to carry out a new, expanded drilling exploration program. The province consulted with the Tsilhqot’in who opposed the new program on the basis that it would have lasting adverse effects on their rights. In July 2017, the province’s Senior Inspector of Mines provided a 30 page written decision approving the expanded drilling program. The decision included 37 mitigation conditions in order for Taseko Mines to conduct their drilling. The applicants applied for judicial review of this decision. The Supreme Court of British Columbia dismissed the petition for judicial review on the basis that the Senior Inspector’s decision was reasonable. The Court of Appeal for British Columbia dismissed the subsequent appeal.