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
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
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
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
2016 was a busy year from some of the energy regulators. The National Energy Board was moving two pipeline projects forward with approvals of the Trans Mountain expansion and Enbridge's Line 3, both with Federal Government approvals following in December 2016.
This post provides an overview of the new details regarding the REP and an update with respect to the upcoming AESO education session on Alberta's capacity market to be held in Calgary on February 7th, 2017.
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