Canada: BC Court Of Appeal Agrees That Consultation On Mine Expansion Was Adequate

Last Updated: October 3 2013
Article by Kevin O'Callaghan

On September 26, 2013, the Court of Appeal issued its decision in Louis v. British Columbia (Minister of Energy, Mines, and Petroleum Resources), 2013 BCCA 412, finding that the Crown met its obligations to consult the Stellat'en First Nation in the context of a series of applications related to the proposed expansion of the Endako Mine by Thompson Creek Metals Company Inc. (TCMC).

The Court of Appeal, in a decision by Mr. Justice Groberman, found that the consultation on such an expansion could proceed on an application-by-application basis. The Stellat'en had asserted that it was incumbent upon the Crown to engage in consultation over high-level strategic planning and not piecemeal. The Court held that the consultation record demonstrated that the Crown officials made adequate efforts to determine whether the application before them might have adverse effects on asserted Stellat'en Aboriginal rights – and that was sufficient to meet the duty to consult in these circumstances.

This was an appeal from the decision issued by the Supreme Court of BC in Louis v. British Columbia (Energy, Mines and Petroleum Resources), 2011 BCSC 1070, in which the Court found that the Crown had fulfilled its duty to consult and had acted honourably in its efforts to consult. View our previous bulletin on the case for more details.


As described by the Court, the Endako Mine is located approximately 8.5 kilometres southwest of the town of Endako, which is 190 kilometres west of Prince George. It is an open-pit molybdenum mine and has been in operation since 1965, processing 28,000 tonnes of ore daily. TCMC is the 75% owner and operator of the Endako Mine. TCMC holds a "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.

TCMC 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, TCMC began canvassing stakeholders about their intention to pursue the expansion. This was done independent of the Crown. In early 2008, TCMC 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 in which the Crown requested the Stellat'en provide input on the process.

In the weeks that followed the Crown's request for input and notice of TCMC'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. The Court lamented at this misapprehension of the law, prior to guidance from the Supreme Court of Canada in the Rio Tinto case, which spurred the Stellat'en to improperly refuse to consult.

From April to October of 2008, the Crown and TCMC 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 Ministry granted the requisite amendment 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.

The Stellat'en's petition was filed in Supreme Court in Vancouver on May 18, 2010. The hearing began February 28, 2011.

The Decision Below - Louis v. British Columbia (Energy, Mines and Petroleum Resources), 2011 BCSC 1070

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. 

Justice Crawford reviewed the Crown's assessment of the consultation required in light of the Haida and Rio Tinto decisions from the Supreme Court of Canada, and concluded: "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."

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; the Crown initiated consultation early, it continually and openly shared information and it listened to concerns and responded.

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 obligation as one of "give and take".

Decision of the Court of Appeal

The Court of Appeal first dealt with the idea that the expansion of the mine would extend the life of the mine, which would in turn have the effect of elongating the effects that the mine was having on Aboriginal rights. The Court pointed out that the life of the mine was not in the hands of the Crown, but was the decision of TCMC based on technological and market factors. Although the practical effect of expansion could be that the life of mine was extended, that was not a novel impact of the mine on the Stellat'en's claimed Aboriginal rights. 

[85] The consultation efforts engaged in by the Crown in this case were appropriately directed at the novel impacts of the expansion project. Given that the existing titles and permits allowed extensive disturbance of the mine-site by Thompson Creek Metals, and given the relatively small increase to the mine's footprint, the process engaged in by the MEMPR appears to me to have been a reasonable one. This is particularly the case in light of Stellat'en's refusal to identify any particular impacts of the project on Aboriginal rights. ...

The Court also examined how the discretion of a Crown decision maker could affect the content of consultation in certain circumstances, holding:

[81] The existence of a duty to consult, does not, however, represent an invitation to the Crown to exercise its powers in an arbitrary or capricious manner, even if it is asserted that by doing so, it might be able to protect asserted interests of First Nations. A new application for regulatory approval must be considered on its merits, and where it will affect asserted Aboriginal rights, the Crown must engage in consultation. It cannot, however, abuse its regulatory discretion by using the application as a tool to undermine the existing rights of the applicant.


[84] This is not to say that the Minister's statutory discretion when considering amendments to the mining permit was narrow. Undoubtedly, the Minister's statutory discretion was a broad one. In considering whether to authorize the construction of the new mill, the Minister's representatives were clearly entitled to consider such things as the impact on Aboriginal rights of the taking up of additional land by the mill, the environmental impacts of the increased mill throughput, and any other novel adverse impacts resulting from the industrial processes that were to be used in the new mill.

The Court found that the Crown did consider the above impacts, and as a result the consultation was sufficient.

The Stellat'en's core argument was that the Crown must consult regarding high-level strategic planning and that, therefore, the consultation undertaken by the Crown on an application by application basis was insufficient. They characterized this as piecemeal consultation.

The Court disagreed, holding that in the context of an existing mine applying for an expansion was a series of applications – there was no overarching strategic level decision to be made by the Crown. Given that the Crown was not making such a "strategic" decision, consultation on an application-by-application basis was appropriate in these circumstances. The Court held:

[111] The Stellat'en assert that the early permits should not have been issued until a decision had been made on the appropriateness of the project as a whole. They point out that, unless the project as a whole was going ahead, there was no need to clear land, study the geotechnical characteristics of the proposed mill site, or prepare that site for construction.

[112] This argument might well have considerable force if the Stellat'en had asserted that the relatively minor disturbances envisioned by the early permits had significant adverse impacts on their asserted Aboriginal rights. Indeed, even relatively minor impacts might have militated in favour of delaying consideration of the applications so that they could be considered along with the other applications critical to the expansion project.

A critical issue for the Court was the Stellat'en's refusal to engage in consultation. Although the Court was clear that there was no legal "duty" on First Nations to engage in consultation, the practical result is that the First Nation cannot rely on a lack of consultation if they refuse to be involved in the process or provide any substantive information about site-specific rights that may be affected:

[113] The Stellat'en did not, however, make any assertion that specific Aboriginal rights would be adversely affected by the early authorizations. The Crown officials who issued the permits concluded, in the absence of any substantive response from the Stellat'en, that the relatively small and already highly-disturbed areas involved would not seriously affect asserted rights.


The Stellat'en decision is an application of the Supreme Court of Canada's decisions in Haida and Rio Tinto. However, there are two key issues that were fundamental to the result in the case which bear remembering.

The first is that the context matters. Much of the Court's analysis in this case turned on the fact that the company had pre-existing rights and an existing facility. The decision to have a mine there had been made a long time ago, what was at issue was the plan to make it incrementally bigger. Everything from the seriousness of impact to the sufficiency of the consultation was viewed through the lens of that incremental change.

The second is that the Court does not view favourably a party (whether First Nation or Crown) who refuses to engage in consultation. In this case the Stellat'en refused to consult because of their view of the state of the law regarding consultation (which turned out to be incorrect). The Court judged the consultation that the Crown was able to undertake in the light of that refusal and found that it was sufficient. Any party that refuses to engage in consultation on principle takes a risk that the Court will not agree with that principle.

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