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ABORIGINAL LANDS - Duties of the Crown - Fair dealing and reconciliation

Tuesday, March 26, 2019 @ 8:52 AM  


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Appeal by the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation from a judicial review judgment. The appellants held judicially recognized aboriginal hunting, trapping and trade rights in their traditional territory. They also conducted fishing, gathering, and spiritual and ceremonial activities in the area that were of special significance to their cultural identity and heritage. The respondent, TML, was a mining company that held mineral lease rights in the area. The respondent proposed to develop a gold and copper mine. A federal environmental assessment rejected the project due to its significant adverse environmental effects. A provincial environmental assessment certificate was issued and extended. The respondent sought approval of an exploratory drilling program to meet the deadline for substantially starting work under the extension of its provincial environmental assessment certificate. Following a lengthy consultation process, the province granted the approval sought. The area in question did not overlap with the appellant's title lands and impacted 0.04 per cent of its traditional territory. The appellants sought judicial review. The chambers judge concluded that the province's decision was reasonable and did not involve a breach of the duty to consult and accommodate the appellants. The appellants appealed.

HELD: Appeal dismissed. It was clear from the approval decision and the conditions imposed that the appellants' concerns were given a reasonable level of consideration by the province. The chambers judge properly found that the reasons provided adequate justification, transparency and intelligibility, including a satisfactory explanation for rejection of the appellants' position. Although the federal rejection was a significant hurdle for the respondent, it did not mean that a subsequent mine proposal could not obtain federal approval prior to the substantial start deadline. The approval decision was not unreasonable, and the chambers judge properly applied the reasonableness standard of review. The fact that the appellants' position was not accepted did not mean the process of consultation was inadequate or that the Crown did not act honourably.

Xeni Gwet'in First Nations v. British Columbia (Chief Inspector of Mines), [2019] B.C.J. No. 289, British Columbia Court of Appeal, P.A. Kirkpatrick, R. Goepel and L.A. Fenlon JJ.A., March 1, 2019. Digest No. TLD-March252019004