Louis v. British Columbia (Minister Of Energy, Mines And Petroleum Resources), 2013 BCCA 412 . . .
In this decision, the British Columbia Court of Appeal determined that Crown consultation with a First Nation with respect to a mine expansion does not have to encompass impacts of the existing mine.
Thompson Creek Metals Company Inc. and its joint venture partners (Thompson Creek) owned and operated an open-pit molybdenum mine in northeastern British Columbia that had been in operation since 1965. Thompson Creek sought to expand and modernize the mine by, among other things, constructing a new mill, combining three existing pits into one "superpit," and consolidating tailings ponds. The applicable regulations did not require Thompson Creek to obtain overall approval of the expansion; rather, Thompson Creek needed discrete permits and amendments to existing permits for certain aspects of the expansion.
The Stellat'en First Nation (First Nation) claimed Aboriginal title to the land on which the mine was located. The provincial government therefore attempted to enter into consultations with the First Nation about aspects of the mine expansion; however, the parties had different views on the proper scope of consultation. The First Nation insisted that the province conduct an overall review of the mine expansion project on the basis that the effect of the expansion would be to extend the life of the mine beyond its previously projected closure date. The province was only prepared to consult on each of the discrete permit applications required for the expansion as they were submitted by Thompson Creek and took the position that the closure date for the mine was for the company, not the province, to determine. The First Nation refused to participate in the consultation process as envisaged by the province and eventually commenced litigation.
Both the chambers judge and the Court of Appeal found that the Crown's efforts at consultation met the requirements of Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.
The Court of Appeal found that the Crown had repeatedly attempted to engage with the First Nation, but that the First Nation effectively refused to do so unless past infringements were recognized as part of the process. In addition, the First Nation failed to identify which of its rights would be impacted by any part of the expansion. While the Court of Appeal found that the First Nation was not under a "duty" to participate in the consultation process, its refusal to participate and its failure to identify specific impacts meant that it could not now complain about the adequacy of the process. The Court of Appeal found that the consultation was "as deep as it could be" in the circumstances and adequate in respect of each of the discrete permit applications.
On the issue of whether consultation should encompass the effects of the existing mine, the Court of Appeal found that consultation process could not be used as a means of eliminating rights already held by Thompson Creek pursuant to the existing permits. No consultation was required in regard to the change in the projected closure date of the mine and the province had correctly focused on the novel impacts of those aspects of the expansion project for which new approvals were required. There was no requirement to consult in respect of past infringements.
Although the Court of Appeal did not find in favour of the First Nation, the Court did remark on the lack of engagement in the consultation process and encouraged (though did not order) the parties to engage in further discussions with a view to identifying any adverse effects of the mine expansion on the First Nation.
The First Nation has sought leave to appeal to the Supreme Court of Canada.
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