Federal Court

Aboriginal Law

Constitutional issues

General principles

Inappropriate to modify Parliament’s specific power over Indians for protection of general power

Applicant T Ltd. proposed mining project, which underwent environmental assessment by review panel. Mine site was within traditional territory of respondent First Nation TNG. Respondent Minister of Environment (“minister”) and Governor in Council (“GIC”) made decision pursuant to s. 52 of Canadian Environmental Assessment Act (“CEAA”) that mining project was likely to cause significant adverse environmental effects. GIC decided that these effects were not justified in circumstances. T Ltd. brought application for judicial review. T Ltd. alleged of breaches of procedural fairness and jurisdictional errors, as well as constitutional challenge to ss. 5(1)(c), 6 and 7 of CEAA. Sections 5(1)(c) and 6 of CEAA appeared to be intra vires. Substance of impugned provisions comes within federal Parliament’s power to legislate for “Indians, and Lands Reserved for the Indians” in s. 91(24) of Constitution Act, 1867. Indigenous people have many of same interests as non-indigenous people, and these interests are often uniquely at risk in ways that interests of non-indigenous people are not. Power in s. 91(24) is specific power, and it would be inappropriate to modify this power for protection of general power. Proponent does not have right to take part in consultations between Crown and First Nation. However, this is not to say that proponent may never have role in consultations. T Ltd. was afforded fair process before minister given factors including but not limited to absence of new issues or evidence raised by TNG before minister, and obligation to consult TNG. T Ltd. was owed some degree of procedural fairness, and this was satisfied in circumstances. T Ltd.’s procedural fairness complaint was grounded in asymmetry between treatment of T Ltd. and that of TNG. However, procedural fairness does not always require symmetry and there are circumstances in which fairness necessitates degree of asymmetry.

Taseko Mines Limited v. Canada (Environment) (2017), 2017 CarswellNat 6942, 2017 FC 1100, Michael L. Phelan J. (F.C.).

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