BC Supreme Court Restricts Duty to Consult with First Nations to Consultation with Elected Representatives

Recent Canadian court decisions have established there is a duty held by the federal and provincial governments to consult with First Nations. The Supreme Court of British Columbia’s decision in Red Chris Development v. Quock et al 2006 BCSC 1472 provides direction for project proponents regarding the identification of the appropriate aboriginal groups with which to consult, and also shows that where there has been good faith consultation, the courts are unlikely to grant immediate enforcement orders stopping blockading of public roads.

In the case, Red Chris Development Co. Ltd., a subsidiary of bcMetals Corporation, sought an injunction to restrain blockade by members of the Iskut First Nation of a public road used to transport exploration equipment. The Red Chris Project had already obtained an Environmental Assessment Certificate, a regulatory process which included extensive consultation with the Tahltan and Iskut First Nations as well as rigorous environmental review.

Members of the Iskut First Nation argued that consultation with elected representatives was not sufficient to satisfy the duty to consult and that in addition, local users of the land should be consulted.  If the court had accepted this position, those granting permits for development in areas in which there exist land claims could have been required to consult with First Nations down to the individual level (e.g. all persons using the lands which may be affected should be consulted).  Instead, the decision clarifies that this is not required and that consultation must take place with elected representatives.

Brad Armstrong, Q.C. and Kinji Bourchier of Lawson Lundell LLP represented Red Chris Development Co. Ltd. in the decision.


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