This B.C. Supreme Court decision is a rare example of the Court
sanctioning consultation efforts undertaken by the Crown and
confirming that the Crown had adequately discharged its duty to
consult a First Nation.
The Stellat'en First Nation (Stellat'en) sought judicial
review of, among other things, an amendment to a mining permit
issued in October 2008 by the Ministry of Energy, Mines and
Petroleum Resources to Thompson Creek Metals Company Inc. (Thompson
Creek). The company required the permit in order to build a larger,
more technologically advanced mill less than 100 metres from its
current Endako mine, an open-pit molybdenum mine that has been in
nearly continuous operation since 1965. The new building was being
constructed on previously disturbed land held in fee simple by
Thompson Creek. The Stellat'en assert Aboriginal title over all
the lands in question, including lands on which the existing mine
The parties were in agreement that the Crown had a duty to
consult with respect to the amendment to the permit. The Court
first considered whether the Crown had correctly assessed the scope
and content of its duty, and found that it had. The Crown correctly
tempered its initial assessment of the strength of the
Stellat'en claim by considering that Thompson Creek held the
land in fee simple, and that the potential adverse impacts arising
from the amendment would be low in terms of seriousness. Finally,
the Court reviewed the Crown's consultation efforts, on a
standard of reasonableness, and determined that the Crown
adequately discharged its duty and maintained the honour of the
Crown. The Crown had initiated consultation very early in its
decision-making process; it continually and openly shared
information; it repeatedly encouraged the Stellat'en to make
submissions and express specific concerns; it provided the
Stellat'en with explanations for why and how decisions were
made; and it persisted in the consultation process despite the
Stellat'en's repeated failure to provide input on specific
impacts of the proposed expansion.
On this last point, the Court accepted the Crown's argument
that there is a "reciprocal duty" on the First Nation to
engage in the consultation process in good faith. The Court noted
that the Crown "cannot be expected to fulfill its duty to
consult in a vacuum" and that there must be some willingness
on the part of the First Nation to co-operate in the process.
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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