Jan 31, 2012
December 2, 2011, the Supreme Court of British Columbia awarded Marilyn
Baptiste, on her own behalf and on behalf of the members of the Xeni Gwet’in
First Nation Government and the Tsilhqot’in Nation, an interim injunction restraining
Taseko Mines Limited from carrying out exploration work authorized by two
Despite recent direction from the Supreme Court of Canada,
this case illustrates how there is still considerable ambiguity in the law
regarding the content of the Crown’s duty to consult. Specifically, it raises
the issue of whether past and potential future events, which are not directly
related to the Crown action that triggered the duty to consult, are relevant in
determining the scope of consultation required.
Taseko is the proponent of the Prosperity Project, a
proposed open pit gold and copper mine (the Project). The Project was rejected
by a federal environmental assessment review panel in 2010. In 2011, Taseko
submitted a revised project description to the Canadian Environmental
Assessment Agency, who again referred the revised Project to a review panel for
Marilyn Baptiste is the Chief of the Xeni Gwet’in, one of
six bands that constitute the Tsilhqot’in Nation. The Supreme Court of British Columbia
previously held that the Tsilhqot’in Nation has Aboriginal rights in the area
within which the Prosperity Project is to be located.2
In October and November 2011, Taseko obtained two provincial
permits authorizing it to carry out exploration work relevant to the
engineering of the Project. Upon attempting to access the Project
site, Taseko was faced with a blockade.
The Xeni Gwet’in and Tsilhqot’in Nation (together, the “applicants”)
commenced judicial review proceedings seeking to quash the provincial permits
on the ground that the Crown breached its duty to consult. The applicants also
applied for an interim injunction restraining the activities authorized by the
permits pending determination of the judicial review application.
Mr. Justice Grauer concluded that the applicants had
established a fair question to be tried. He refrained, however, from
determining whether the Crown’s focus solely on the work to be performed under
the provincial permits was appropriate, or whether a deeper level of
consultation was required. The Crown and Taseko argued that, given the
restricted nature of the work authorized by the permits, the required
consultation fell at the low end of the spectrum. In contrast, the applicants
argued that the Crown was required to consider the cumulative impacts of years
of exploration work and the future impacts of a full mining operation in
determining the level of consultation required. The Crown’s position finds
support in the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council.3
However, the recent British Columbia Court of Appeal decision in West Moberly First Nations v. British
Columbia (Chief Inspector of Mines),4
indicates that Rio Tinto may be
distinguishable and, in some cases, an examination of the historical context
and potential impacts of the Project as a whole may be appropriate when
determining the level of consultation required.5
Justice Grauer also concluded that the balance of
convenience favoured the applicants. The grounds upon which Justice Grauer made
this decision include that:
- the injunction was only sought for a relatively short
period of time;
- if the injunction is not granted, the applicants would lose their asserted
right to deep consultation;
- there is public interest in ensuring reconciliation of competing interests
through consultation and accommodation; and
- each new incursion into the lands upon which the applicants exercise their
traditional rights constitutes irreparable damage.
Justice Grauer held that “if only a portion of the proposed
new clearings and trails prove to be unnecessary, the preservation of that
portion is vital”. In contrast, Justice Grauer noted that the “ore bed is not going
In the result, Justice Grauer awarded the injunction, which
is to remain in effect for up to 90 days, unless extended by the Court, and in
any event for no longer than is required for the judicial review application to
Like all injunction cases, this case is highly
fact-specific. However, it does affirm that the Courts are keen to see that the
consultation and accommodation process begins on the right footing. The Courts
prefer that potential deficiencies in this process are addressed before the
activities at issue are carried out, rather than after the fact, particularly
in the case of large, contentious projects.
This case also highlights an area of law that requires
further judicial clarification. In Rio
Tinto, the Supreme Court of Canada was clear that the “subject of the
consultation is the impact on the claimed rights of the current decision under consideration.”7
The recent case of West Moberly has
injected a degree of uncertainty into this analysis by suggesting that Rio Tinto may be distinguishable in some
cases. Leave to appeal to the Supreme Court of Canada has
been sought in the West Moberly case.
If you have any questions on the implications of the subject
matter of this Osler Update, or you wish to discuss further, please contact
Martin Ignasiak, Katherine Murphy or Daniel Yaverbaum.
1 Taseko Mines Limited v. Phillips, 2011
2 Tsilhqot’in Nation v. British Columbia,
2007 BCSC 1700.
3 2010 SCC
5 Ibid, at paragraph 116, per Finch, C.J.
6 Taseko at paragraphs 65-66.
7 Rio Tinto at paragraph 53.