Canada: BC Court Of Appeal Confines Duty To Consult To Novel Impacts

The BC Court of Appeal holds that the duty to consult must focus on novel impacts of Crown approval for a project—not past wrongs—and also holds that the Crown may take an incremental partial approach to consultation where an industry actor is seeking individual permit approvals in the context of a larger project.

The recent BC Court of Appeal decision Louis v British Columbia (Minister of Energy, Mines, and Petroleum Resources) involved a dispute between the Stellat'en First Nation and Thompson Creek Metals (TCM), over TCM's plans to expand operations of its Endako mine. The permit for the Endako mine had initially been granted in 1965, and the mine had been almost continuously in operation since that time. The Stellat'en had long asserted that the Endako mine, which was located on land over which the Stellat'en claimed aboriginal title and rights, detrimentally affected the exercise of its rights.

TCM's mine permit was not subject to an expiration date, but TCM had initially forecast that it would close the mine between 2011 and 2013. The company revised this plan in 2007 after determining it would be profitable to continue operations if it modernized the mill and expanded the scope of the mine. TCM thereafter sought to obtain permit approvals and amendments from the province as required.

When the Crown alerted the Stellat'en of TCM's expansion plan, the Stellat'en claimed that consultation had to be directed at past infringements as well as the impacts flowing from the expansion project. They also insisted that TCM's expansion project represented a "fundamental change" to the project, and thus required the Crown to engage in significant consultation with the Stellat'en in a manner that dealt with the entirety of the expansion project at the outset rather than with each individual regulatory approval as it arose. As a result of the Stellat'en's insistence on these terms, the Crown's attempts at consultation failed at an early stage, and the Stellat'en thereafter brought a claim for judicial review of the government's actions.

The chambers judgement

The chambers judge concluded that the Crown had fulfilled its consultation obligations appropriately in the circumstances. He concluded that the proposed impact of the project was low, and thus had triggered only minimal consultation obligations. He also held it had been appropriate for the Crown to consult the Stellat'en on a piecemeal basis as various permit approvals or amendments were sought.

The Court of Appeal decision

The Court of Appeal upheld the chambers judge's ruling, concluding that the Crown had made adequate efforts to determine whether each permit application would adversely affect the Stellat'en's aboriginal rights, and had fulfilled its duty to consult by trying (albeit unsuccessfully) to consult the Stellat'en in this regard. One of the factors central to the court's determination was the finding that the Stellat'en had failed to identify how construction of the mill would have particular adverse impacts on its asserted rights.

The Court of Appeal addressed two key issues in its decision. First, it held that the Crown was correct to focus its consultation on the novel impacts of the expansion project, and not on whether the existing permits had allowed extensive disturbance of the mine site. The court agreed with the Crown that the consultation process did not have to deal with past infringements. While the mine had been projected to close between 2011 and 2013, TCM had not been required to do so, and had never set out a definite schedule for the cessation of its operations.

The court accepted that the Crown's decision to allow a new mill to be built had the practical effect of extending the life of the mine, but held that it would not have been in keeping with the consultation scheme envisaged by Haida Nation and Rio Tinto for the Crown to "use the [TCM's] application as a backdoor process for the elimination of rights already held by TCM" (para 83). The court agreed with the chambers judge that the novel impacts of the expansion project were minimal when one considered that the expansion plan would only marginally increase the mine's footprint.

Second, the court found that the Crown's approach to incremental partial consultation was appropriate in the circumstances. The evidence had indicated it was usual mining industry practice for a company to proceed with expansion plans by submitting applications for authorizations one at a time, so the approval of one permit could not have been seen as a guarantee that all subsequent authorizations or amendments would also be approved.

The correspondence record indicated that the Crown had at no point fettered its discretion to consult the Stellat'en on each individual application, and in particular, on later applications as they arose. The court acknowledged that high-level decision-making by the Crown may give rise to a duty to engage in an overall consultation on a project early in the regulatory process, but held that in the present case, the Crown had not been involved in any strategic planning or decision-making with respect to the life of the mine or the decision to expand its operations. TCM had been solely responsible for making those decisions. The court indicated that broader consideration of the project as a whole might have nevertheless been appropriate had the Stellat'en asserted that the relatively minor disturbances envisioned by the early permits would have significant impacts on their aboriginal rights.

Discussion

The Court of Appeal's decision in Louis follows the Supreme Court of Canada's decision in Rio Tinto, which held that the duty to consult cannot be used to redress past wrongs, but must rather focus on the novel impacts of a decision.

Unfortunately, the Court of Appeal's decision did not discuss how historical context and cumulative effects might factor into the consultation analysis when a current decision will have a novel adverse effect on a claim or right—an issue that was left open by the same court in West Moberly, as well as by the Supreme Court of Canada in Rio Tinto. In light of its finding that there was no evidence the construction of the new mill would have any serious novel adverse impacts on the Stellat'en's asserted rights, the Court of Appeal may have considered this issue irrelevant to the appeal.

The law around the duty to consult has evolved considerably since 2008, when consultation concerning the Endako mine expansion first began. Notably, the Supreme Court did not decide Rio Tinto until 2010. The Stellat'en might have taken a more cooperative approach to consultation had it had the benefit of that precedential decision, by tendering evidence of adverse impacts on its asserted rights, for example.

While the Court of Appeal left open the possibility of accommodation if the Stellat'en could establish that their aboriginal rights would be adversely affected by the mill construction, the court did not make a legal order requiring the Crown to engage in further consultation. Thus, the decision may have the effect of encouraging the Crown and Stellat'en to engage in further dialogue, but also underscores the challenges parties face in trying to navigate this relatively new and rapidly evolving area of law.

Norton Rose Fulbright Canada LLP

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