Canada: British Columbia Court Of Appeal Reaffirms Duty To Consult Not A Duty To Agree

Indigenous Law Bulletin
Last Updated: March 26 2019
Article by Kevin O'Callaghan, Amy Carruthers and Niall Rand

Introduction

In a unanimous decision, William v. British Columbia (Attorney General), 2019 BCCA 74, the British Columbia Court of Appeal affirmed that a proposed exploratory drilling program associated with the New Prosperity Mine could proceed after its approval by the Provincial government was found to be reasonable. In dismissing the appeal, the Court commented that not accepting the position of an Indigenous group who holds an honest belief that a project should not proceed does not mean that the process of consultation is necessarily inadequate or that the Crown did not act honourably in reaching a decision. Sometimes parties are unable to resolve their differences and work towards reconciliation because of fundamental disagreements.

Background

Taseko Mines Limited ("Taseko") holds a mineral lease and related mineral claims in an area 125 kilometres southwest of Williams Lake, British Columbia. The area falls within a portion of the traditional territory of the Tsilhqot'in Nation ("Tsilhqot'in") in which Aboriginal hunting, trapping and trade rights (but not Aboriginal title) have been proven. The Tsilhqot'in continue to conduct a number of activities in the area, beyond hunting and trapping, and claim that the area is increasingly critical to maintain their culture and exercise their rights.

For over a decade, Taseko has actively pursued the development of a mine in Tsilhqot'in traditional territory which would produce an estimated 11 million ounces of gold and 4 billion pounds of copper from the Prosperity deposit. The mine, as originally proposed, required separate federal and provincial environmental assessments. While the Province of British Columbia (the "Province") approved the project, the Federal Government did not; concluding that it would have significant adverse environmental effects in the area.

After adjusting the design of the original project (the "New Prosperity Project"), Taseko re-applied for federal approval, but was ultimately rejected for a second time. Taseko filed applications for judicial review challenging the findings and decision in relation to the second rejection. [1] Both applications were dismissed, but have been appealed to Federal Court of Appeal and await hearing. As it stands, the provincial Environmental Assessment ("EA") Certificate cannot be extended any further and will expire in January 2020 if work is not substantially started by that date.

These proceedings concern Taseko's preparations for a second exploratory drilling program in the area. The proposed program would gather geological and engineering data to inform part of the provincial permitting process and ensure a timely start to construction in the event federal approval of the New Prosperity Project is secured. Before commencing the program, Taseko was required to submit an application to the Province for approval.

Given the impact the proposed program would have on Tsilhqot'in (with approximately 0.04% of their traditional territory impacted), a lengthy consultation was undertaken as part of the application process. In July 2017, the Senior Inspector of Mines (the "Inspector") issued lengthy reasons approving Taseko's application, subject to 37 conditions.

The Proceedings

Chief Roger William, a former chief of the Xeni Gwet'in First Nations Government (a subgroup of the Tsilhqot'in), filed a petition for judicial review alleging that the Province had breached their duty to consult and accommodate in approving the exploratory drilling program. The Supreme Court of British Columbia ("BCSC") dismissed the petition.

The petitioners appealed the judgment of the BCSC on the basis that the chambers judge had erred by finding that: (1) the Province did not breach its procedural duty to consult and accommodate with the Tsilhqot'in; and (2) its approval of the exploratory drilling program was reasonable (such that the honour of the Crown was maintained). On March 1, 2019, the British Columbia Court of Appeal agreed with the findings of the chambers judge and dismissed the appeal.

With respect to the alleged procedural breaches, the Court held that the Tsilhqot'in's concerns were given due regard in the reasons of the Inspector, including the inclusion of conditions that specifically addressed their views. The reasons were adequately justified, transparent and intelligible.

The Court also agreed with the chambers judge that the substance of decision to approve the drilling program was reasonable. The Inspector was charged with making a reasonable decision (not a perfect decision) and did so with a mind to the following:

  • The possibility that the New Prosperity Project may never receive federal approval;
  • The $15-20 million expended by Taseko in obtaining the provincial EA Certificate that would be lost if work was not substantially started by January 2020;
  • The information gathered in the course of the drilling program could be relied upon by Taseko in future mine applications; and
  • The tenure rights in this area will be in place until 2035.

Implications

Proposed projects associated with the Prosperity deposit have faced a number of setbacks over the past decade (many of which directly related to the federal EA process). These setbacks have been compounded by opposition from the Tsilhqot'in, who also challenged a more limited exploratory drilling program approved by the Province in 2011. While that dispute was ultimately resolved, the parties have been unable to reconcile their differences with respect to this drilling program. As the Court noted:

In this case, reconciliation cannot be achieved because of an honest disagreement over whether the project should proceed. The process of consultation was adequate and reasonable in the circumstances. The fact that the Tsilhqot'in position was not accepted does not mean the process of consultation was inadequate or that the Crown did not act honourably. (para. 61)

The Honourable Mr. Justice Sewell made a similar observation in Prophet River First Nation v. British Columbia (Environment) [2] when he acknowledged that the parties in that proceeding were unable to reconcile their differences over the Site C dam project, but that "the government made a good faith effort to understand the petitioners' position...and address the petitioners' concerns." [3] The same can be said to have taken place with respect to Taseko's proposed exploratory drilling program.

While the object of consultation and accommodation is always to work towards reconciliation, sometimes honest but fundamental disagreements occur. Ultimately, the adequacy of consultation is a determination that is independent of ideology, and is driven by a fact-based analysis guided by well-established legal principles.

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Footnotes 

See [1] Taseko Mines Limited v. Canada (Environment). 2017 FC 1099and Taseko Mines Limited v. Canada (Environment), 2017 FC 1100
[2] Prophet River First Nation v. British Columbia (Environment),
2015 BCSC 1682  [Prophet River]
[3] Prophet River at para 159.

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.

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