Canada: Update: Louis v British Columbia Minister Of Energy Mines And Petroleum Resources

Last Updated: September 30 2013
Article by Robin M. Junger and Brittnee Russell

On September 26, 2013 the BC Court of Appeal rendered its decision in Louis v British Columbia (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412. The decision is important because it addresses a number of common challenges and questions that arise in the consultation process (and for which aboriginal groups, governments and third parties often have differing views). More specifically, in this case, the BC Court of Appeal makes clear that:

  • The Crown's obligation to consult aboriginal groups in relation to a particular decision must not be used as a means to essentially revisit authorizations previously issued in respect of the same operation. Rather, the duty to consult in such context must focus on new or "novel" impacts of such further authorizations on asserted aboriginal rights and title.
  • Where a First Nation refuses to meaningfully participate in a consultation process, that will not prevent a court from finding that the Crown's duty has been met. This is true even where the First Nation declined to fully participate because it and the Crown held differing views on the consultation required.
  • The fact that a company relies on partial approvals without full and final approvals in place does not diminish the legitimacy of the subsequent decision making and related consultation.
  • There is no requirement for the Crown to engage in high-level or strategic decision making (where that is not otherwise being undertaken) in order to satisfy the duty to consult.
  • There is no requirement that a consultation process provide accommodation for past infringements.
  • Negotiation of Economic and Community Development Agreements (which typically include economic benefits) are separate from and do not assist the Crown in fulfilling the duty to consult and accommodate.


The case arose as a result of the proposed expansion of the Endako mine operations, which entailed a number of separate regulatory approvals to proceed rather than one overall approval. These regulatory approvals related to timber removal, use of water from nearby François Lake and several separate amendments to the original mine permit.

The Stellat'en First Nation took the position that it should be consulted about the overall expansion of the Endako mine – and whether that expansion should occur – as opposed to the various regulatory approvals. The Stellat'en First Nation also suggested that although consultation hadn't occurred in respect of the existing Endako operations, which date back to the 1960s, the expansion permit applications created the opportunity for such consultation and potential accommodation. Throughout the consultation that did occur, the Stellat'en First Nation suggested that the process was unreasonable, characterizing it as "piecemeal", and they did not fully participate in consultation opportunities.

In dismissing the Stellat'en First Nation's judicial review application, the BC Supreme Court had rejected their argument that the mine expansion and extension of the mine's life had novel impacts, finding that the length of the mine's life was entirely determined by the mine proponent (subject to meeting legislative requirements) – not provincial decision makers – because the existing mine permit did not expire.

Writing for the Court of Appeal, Justice Groberman agreed with the Crown and the Supreme Court's analysis that the mine expansion, resulting in the extension of the mine's life, did not result in novel adverse impacts on aboriginal rights and title. The Endako mine proponent owned land and mineral rights in the area where the expansion would occur. Justice Groberman noted in obiter that this was not a case where the Crown was divesting itself of property that could be subject to a finding of aboriginal title – a similar theme arose in the decision Ross River Dena Council v Government of Yukon, 2012 YKCA 14, also written by Groberman J.

The Court also rejected the Stellat'en First Nation's argument that the Crown had inappropriately determined that only minimal consultation was appropriate, finding that the consultation process was a "failure" because the Stellat'en First Nation refused to participate in the process. In this regard, Justice Groberman stated the following:

[92] As I have already indicated, the consultation process in this case was a failure. This was not because of an absence of effort on the part of the MEMPR, but rather a result of the parties' disparate views as to the nature of the required consultation. Because it misconstrued the nature of the consultation required, the Stellat'en refused to participate in the process. In those circumstances, it seems to me that the consultation undertaken by the MEMPR was as deep as it could be.

The Stellat'en First Nation also argued that consultation was required on the Crown's part at a high, strategic level as to whether the mine expansion should proceed. Justice Groberman, citing a lack of support for such an argument in the relevant case law, found that no such high-level decision was to be made by the Crown in this situation. Further, for each regulatory approval, the Crown made appropriate consultation efforts.

Finally, Justice Groberman commented on the relationship between consultation duties and Economic and Community Development Agreements (which typically include economic benefits) and noted that while such discussions can occur simultaneously, the latter do not assist the Crown in fulfilling the duty to consult and accommodate.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

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.

Robin M. Junger
Brittnee Russell
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
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
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 (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

To Use 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.


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.


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