On 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 provincial permits.

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.

The Facts

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 assessment.

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.

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.

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