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.


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

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.