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.

Background

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.    

www.fasken.com

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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