The B.C. Court of Appeal dismissed an appeal in relation to whether the Province had properly consulted the Stellat’en First Nation (SFN) regarding a mine expansion project. The consultation process had faltered at an early stage due to the SFN’s insistence that consultation include past infringements, and that it be directed at the project as a whole rather than individual permits. The SFN failed to identify specific adverse impacts on its asserted rights that would be a consequence of the mine expansion project. The Court of Appeal held that the SFN’s position was based upon a misapprehension of the law, and found that the Crown complied with its duty to consult.   The Crown was entitled to conduct the consultation process on a permit-by-permit basis. This was not a “high level planning” case like Haida, as the Crown was not divesting itself of land or resources. The mine expansion project represented a relatively small increase in the footprint of the mine, and the SFN had failed to identify any adverse effects on its asserted rights.

The SFN asserts Aboriginal rights and title to an area in the Upper Fraser River watershed in the north-central region of British Columbia. Approximately 10 kilometres from the main Stellat’en community is the Endako Mine, operated by the respondent Thompson Creek Metals. The mine had been in continuous operation since 1965, except for a period in the 1980s. It had been expected that the mine would close between 2011 and 2013, but market prices for molybdenum led the operator to develop plans for significant modernization and expansion of the mine. The plans involved the construction of a new mill and an increase in the rate of extraction. The “footprint” of the mine, however, would not be significantly expanded.

The expansion plan required several new permits and permit amendments. The regulatory framework did not provide for any overall approval of the expansion project. This judicial review proceeding focussed on the amendment to the M-4 permit under section 10 of the Mines Act approving construction of the mill and the expansion infrastructure.

The respondent Thompson Creek applied for permits in early 2008 to allow for the clearing of timber, and such applications were referred by the Ministry of Forests and Range to the SFN. In April 2008, the SFN took the position that the Province must engage in consultation directed at the entirety of the expansion project, and would not identify interests that would be affected by only the timber permit. The same position was taken with respect to a notice of work submitted by Thompson Creek Metals. They stated that it was unreasonable for the Crown “to divide up its consultation into numerous specific sub-permits”. The permits and approvals were subsequently issued to Thompson Creek.

Further meetings and correspondence occurred in the summer and fall of 2008. The Province recognized the concerns of the SFN about “past infringement”, but stated that the Ministry is not required to “remedy any past infringements in relation to the original mine” when consulting about the proposed mine expansion. Previous infringements would be addressed through treaty negotiations.

The Province concluded that consultation should be significantly deeper than “minimal”, due to the proximity of the Stellat’en community to the mine, but had to proceed in the absence of any information provided by the SFN about adverse impacts. There was a “working assumption” that there would be claimed Aboriginal rights to harvesting activities in the area. Groberman J.A. later commented that it was curious that the SFN had never provided the Province, or the chambers judge, with any specific information as to how the mine expansion project would affect their Aboriginal rights.

It was also noted that Thompson Creek was not legally bound to conclude an Impact Benefits Agreement before the permits would be approved. Further, the land was owned in fee simple by Thompson Creek, there had been a high degree of previous disturbance, and the potential impacts of the construction of the mill were low.

The Court of Appeal noted that the Supreme Court of Canada decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, which rejected the position that the Crown had a duty to consult over past and continuing effects, was released after this process.

The SFN argued that there was a “novel adverse impact” in that the mine was scheduled to shut down between 2011 and 2013, and the approval of the mine expansion project. Their arguments were rejected by Mr. Justice Crawford at the hearing of the petition: 2011 BCSC 1070.

The fundamental issue on the appeal was whether the Minister and the chambers judge erred by not characterizing the extension of the life of the mine as constituting a novel adverse impact. The Court held that the analysis undertaken by the Minister and the chambers judge was “fundamentally sound”. Thompson Creek already had title to the minerals and the land. The Crown was not divesting itself of property which might ultimately be found to be subject to Aboriginal title. The mine had been scheduled to close by 2013, but it was not required to do so. The approval of the mine expansion had the practical effect of expanding the life of the mine, but it cannot be said that the prolongation of mining operations is a novel adverse impact within the meaning of the duty to consult analysis. Groberman J.A. stated:

The purpose of the consultation is to ensure that, in keeping with the honour of the Crown, asserted Aboriginal interests are given proper consideration and respect when the Crown disposes of property or grants regulatory approvals. The Crown must ensure that it takes into account both immediate and future adverse impacts when it undertakes such dispositions or approvals.

The existence of the duty to consult does not allow the Crown to act in an arbitrary or capricious manner in order to protect Aboriginal interests. Each application for regulatory approval must be considered on its merits.

The consultation efforts in this case were appropriately directed at the novel impacts of the expansion project. The process was a reasonable one. The mine site had already been extensively disturbed, and the mine expansion would lead to a small increase to the mine’s footprint. The SFN had failed to articulate, with any specificity, the nature of the asserted rights and title or any adverse impacts on such rights.

There had been numerous attempts by the Minister the engage the SFN in consultation. Groberman J.A. commented that a First Nation is not under any duty to cooperate in the process, but the consultation process operates most effectively where there is a high degree of cooperation. Without such cooperation, the process is “easily derailed”. The failure of the consultation process in this case was a result of the parties’ disparate views of the nature of the consultation required.

The Court rejected the SFN’s argument that the consultation process was a “sham”, and that the Crown was determined to allow the mine expansion to proceed. The approval of one aspect of the project did not inexorably lead to approval of other aspects. The regulatory considerations of different aspects of the project were genuine. Thompson Creek was taking risks in pursuing the project when it could have failed to obtain regulatory authority.

The Court rejected the SFN’s arguments about piecemeal discussions, and found that the Crown was not under an obligation to engage in an overall consultation about the expansion project. Based on prior cases, the Crown is required to engage in consultations from the earliest phases of a project. High level planning decisions will often require consultation. However, there is no authority for the proposition that the duty to consult is triggered when the Crown plays no role in the strategic planning. Thompson Creek made the high-level strategic decisions in this case about the mine expansion. It was not a Crown initiative.  Consultation opportunities were provided by the Crown when it made the earliest of its decisions.

The SFN asserted that there was no need for the early permits, such as geotechnical drilling, if the project as a whole was not going ahead.  Groberman J.A. stated

This argument might well have considerable force if the Stellat’en had asserted that the relatively minor disturbances envisioned by the early permits had significant adverse impacts on their asserted Aboriginal rights. Indeed, even relatively minor impacts might have militated in favour of delaying consideration of the applications so that they could be considered along with the other applications critical to the expansion project.

The Stellat’en did not, however, make any assertion that specific Aboriginal rights would be adversely affected by the early authorizations. The Crown officials who issued the permits concluded, in the absence of any substantive response from the Stellat’en, that the relatively small and already highly-disturbed areas involved would not seriously affect asserted rights.

The Crown made adequate efforts, for each authorization, to determine whether the application might have adverse effects on asserted SFN rights. The record supports the conclusions of the chambers judge that the specific applications would have no such effects. The Crown correctly refused to include past infringements in the consultation process. The Crown cannot be faulted for not having engaged in deeper consultations, given the SFN’s unwillingness to participate in the consultation process except on its terms.

At the conclusion of the judgment, Groberman J.A. referred to the Crown’s offer of an Economic Community Development Agreement. The Crown was not relying upon the ECDA proposal as an accommodation. The Court held that the Haida framework for consultation does not prohibit other discussions, and the ECDA discussions did not negate efforts at consultation.

At the conclusion of the judgment, Groberman J.A. encouraged the Crown and the SFN to engage in dialogue to identify any adverse impacts of the new mill. The appeal was dismissed.

http://www.courts.gov.bc.ca/jdb-txt/CA/13/04/2013BCCA0412.htm

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law