Canada: Aboriginal Consultation For BC Mine Expansion Upheld

Last Updated: August 31 2011
Article by Kevin O'Callaghan

On August 5, 2011, Mr. Justice Crawford issued a decision in Louis v. British Columbia (Energy, Mines and Petroleum Resources), 2011 BCSC 1070, finding that the Crown had fulfilled its duty to consult and had acted honourably in its efforts to consult the Stellat'en First Nation on a proposed expansion of the Endako Mine by Thompson Creek Metals Company Inc. ("Thompson Creek").

Justice Crawford essentially applied the principles from the Supreme Court of Canada's decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Rio Tinto), and limited the scope of consultation to impacts from the expansion, rather than the already existing mine. Viewed in that light, Justice Crawford found the consultation to be sufficient, especially in light of the Stellat'en's insistence on consultation and accommodation in relation to the whole of the mining operation (which had been in operation since the 1960s).

While following existing law and also confirming the Supreme Court of Canada's decision in Rio Tinto that there is no duty to consult on past infringements, Justice Crawford's decision has a useful discussion of various indicia of adequate consultation and also discusses the role of third party consultation in satisfying the Crown's duty.


The Endako Mine is located approximately 8.5 kilometres southwest of the town of Endako, which is 190 kilometres west of Prince George, British Columbia. It is an open-pit molybdenum mine and has been in operation since 1965, processing 28,000 tonnes of ore daily. Thompson Creek is the 75% owner and operator of the Endako Mine. Thompson Creek holds an "M-4 Permit" under the Mines Act, R.S.B.C. 1996, c. 293. This permit grants it the general right to mine and is not subject to expiry or time limitations.

Thompson Creek sought to expand the mine in response to higher commodity prices to process lower grade molybdenum more rapidly through the construction of a larger and more advanced mill. The new mill required an amendment to the M-4 Permit. The other effects of the expansion, such as the merging of the three open pits, did not require an amendment.

Beginning in late 2007, Thompson Creek began canvassing stakeholders about their intention to pursue the expansion. This was done independent of the Crown. In early 2008, Thompson Creek gave notice to the Crown and began the formal process leading to the expansion. This also started the concurrent engagement between the Crown and the Stellat'en, and was the first instance at which the Crown requested the Stellat'en to provide input on the process.

In the weeks that followed the Crown's request for input and notice of Thompson Creek's intentions, the Stellat'en communicated their desire to begin consultation immediately to find out whether the expansion could take place. They also sought to address the issue of whether they were adequately consulted and accommodated when the Endako Mine originally opened in 1965.

From April to October of 2008, the Crown and Thompson Creek made a series of attempts to engage the Stellat'en in the process related to the then-proposed expansion. Justice Crawford aptly summarizes the back and forth and noted the limited willingness of the Stellat'en to meet with the other parties, as well as the limited detail provided by the Stellat'en to the other parties regarding the alleged infringement of their Aboriginal rights. On October 29, 2008, the requisite amendment was granted by the Ministry to the M-4 Permit allowing construction of the new mill to proceed.

Market factors delayed the construction of the new mill through most of 2009, and it resumed in August of that year. A final in-person consultation was held in September of 2009 involving all major stakeholders, but was unable to produce a solution to the impasse.

One issue that produced friction between the parties was revenue-sharing. The Crown had attempted to negotiate a revenue-sharing framework with the Stellat'en based on the expansion and the increased production levels at the mine. The Stellat'en sought to structure revenue-sharing based on production from the entire Endako Mine. They argued that basing a revenue-sharing agreement on increased production levels from the expansion was not reflective of the true impacts the expansion would have on their rights and interests. This issue between the parties remained unresolved at the conclusion of negotiations.

As Justice Crawford observed (at paragraph 92), "[i]n short, Stellat'en took the view that no expansion could proceed without completing consultation, but there was no point in carrying out that process, as consultation had not been meaningful and, therefore, they would pursue litigation." The Stellat'en's petition was filed in Supreme Court in Vancouver on May 18, 2010. The hearing began February 28, 2011.

The Decision

At issue before the Court were petitions seeking "judicial review and a number of orders on the primary basis that the provincial Crown, namely the B.C. Ministry of Energy, Mines and Petroleum Resources, failed to adequately and meaningfully consult them and, if necessary, accommodate their concerns in relation to a mine located on land over which the Stellat'en have asserted and continue to assert Aboriginal title and rights."

The Crown made two concessions about the test (from Haida v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 35 (Haida)) for whether they have a duty to consult and accommodate the Stellat'en. First, the Crown admitted that it had knowledge, actual or constructive, of the potential existence of the Aboriginal title or right. The Crown also admitted that the Crown contemplated conduct or proposed the decision related to the Expansion. The third branch of the test, whether that decision may have an adverse impact on the claim of the Stellat'en, was the focus of the Justice Crawford's decision.

Justice Crawford determined (at paragraph 156) that, "[c]onsultation did not readily 'get off the ground' because Stellat'en insisted on discussing alleged past infringements of their asserted Aboriginal title and rights with respect to the opening of the original mine back in 1965 and its continuing operation since then." He went on to dismiss Stellat'en's argument on past infringements based on the Supreme Court of Canada's decision in Rio Tinto. In Rio TInto, the Court held that historical claims are not the subject of consultation or judicial review, although they may give rise to other things such as awards of damages.  

After finding that the Minister did not have to consult on the historic presence and use of the Mine, the Court turned to whether the Crown correctly assessed the scope and content of its duty.

In examining the Minister's preliminary assessment of the strength of Stellat'en's claims and consideration of the seriousness of potential adverse impacts of the permitting process on those claims, the Court considered a number of factors. First, it was accepted that the Stellat'en had a relatively strong claim. However, the overlapping claims of the Nadleh Whut'en, another First Nation, affected the strength of Stellat'en's claim, especially regarding the exclusivity of their asserted title interests and rights. Also, the fact that the new mill was located on land held by Thompson Creek in fee simple impacted the Crown's assessment and reduced the strength of Stellat'en's claim. All three Crown considerations were found to be appropriate by the Court.

Justice Crawford then considered the seriousness of potential adverse impacts as expressed by the Stellat'en. These included the loss of the right to extract additional minerals, prolonged loss and more extensive damage, health and safety effects, and pollution and decreased water quality. In response to these claims, Justice Crawford concluded (at paragraph 175): "I accept as correct Crown's consideration that potential adverse impacts arising from [the Minister's] decision to amend the M-4 Permit would be low in terms of seriousness. In my view, [the Minister] fared well at this step of the Haida test, given Stellat'en's failure to articulate, with any specificity, the nature of its asserted title and rights." The low level of seriousness applied by the Court impacted the scope of the consultation duty.

Finally, the Court considered whether the Crown's consultation efforts were reasonable. Justice Crawford found that the Minister's engagement with the Stellat'en satisfied the appropriate test from Haida and identified a number of indicia in support of this conclusion such as finding that the Crown moved quickly to address issues of consultation, it initiated consultation early, it continually and openly shared information and it listened to concerns and responded. The full discussion can be found at paragraphs 202 to 220 of the decision.

Justice Crawford then discussed the reciprocal duties on the Stellat'en to engage in the consultation process in good faith. Justice Crawford found that the Stellat'en failed to properly respond to the Minister's "numerous good faith attempts" to determine their specific concerns from the proposed expansion. Justice Crawford characterizes the dynamics of this reciprocal duty as a "give and take" (paragraph 226).

The Court then commented on the role of third parties in the greater consideration of the reasonableness of the Crown's consultation efforts. This resulted from the Crown and Thompson Creek's arguments that the Court should consider the efforts of Thompson Creek in assessing the reasonableness of the Crown's execution of its duty to consult.

The Court acknowledged that Thompson Creek had, and continues to have, chances to consult and accommodate the interests of Stellat'en on their own but considered that it was restricted by the caselaw to focus exclusively on the Crown's duties because the Crown bears ultimate responsibility for meeting its constitutional duty. Justice Crawford noted that the case law confirms that the Crown may rely on third party executing procedural matters but the precise extent of this remains unclear. Justice Crawford also recognized the potential for uncertainty for an Aboriginal community about when and to whom they are engaged in consultation with, for the purposes of the duty to consult but noted that this issue could be overcome if the Crown is explicit in its delegation. Ultimately, Justice Crawford found that since he had concluded that the Crown had met its duty, he did not have to come to a determination on this issue and therefore his comments on this issue do not form a binding part of his judgment.

Implications of the Decision

The Stellat'en decision reaffirms a number of important aspects of the law relating to aboriginal consultation:

(a)  It is another example of the courts reaffirming the conclusion in Rio Tinto that Aboriginal groups cannot use past alleged infringements of their asserted Aboriginal title to broaden consultation on proposed developments or in subsequent judicial review proceedings. This conclusion will likely also impact the negotiation of revenue sharing agreements, re-enforcing the Crown's views that they should be limited to new projects and expansions rather than dealing with past issues.  

(b) The decision also emphasizes the impact of overlapping claims on the strength of a First Nation's asserted title interests and rights. Justice Crawford found that the overlapping claims were very likely to affect the strength of Stellat'en's own claim to the same area.

(c) As indicated, Justice Crawford's review of the Crown's consultation efforts provide a useful catalogue of many of the indicia of reasonably consultation.

(d) Also highlighted was the importance of the reciprocal aspect of consultation. Stellat'en did not communicate the specific Aboriginal interests at risk and Justice Crawford could not identify a "minimal willingness to cooperate". 

As indicated, the Court in its non-binding commentary also raises some questions regarding the role of third parties in consultation with First Nations. It will remain to be seen if this issue will be raised in other venues and, if so, if other decisions agree with Justice Crawford's comments on this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions