The Supreme Court of Canada dismissed a leave application filed by the Stellat’en First Nation in regards to the 2013 order of the British Columbia Court of Appeal (2013 BCCA 412) dismissing its appeal in relation to whether the Province had properly consulted them regarding a mine expansion project. The BC Court of Appeal had upheld the decision of the chambers judge that the provincial Crown satisfied its consultation obligations, and that the Crown was entitled to conduct the consultation process on a permit-by-permit basis. 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 BCCA decision was summarized in our e-Newsletter of 3 October 2013.

A summary of the case found on the Court’s website was as follows:

Constitutional law – Aboriginal rights – Crown – Duty to Consult – Does the initial acquisition of mineral rights in a free entry mining system foreclose subsequent consultation with First Nations regarding impacts to aboriginal title if substantial changes, requiring Crown approval, are later proposed respecting the extraction of minerals? – Does this Court’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, exclude from consultation impacts to the use and benefit of the resources in aboriginal title lands when the Crown is considering massive expansions of existing resource production projects? – Does consideration of aboriginal interests when making decisions to fundamentally alter the terms on which resource extraction takes place where there are contested claims amount to capricious and arbitrary decision‑making, as held by the Court of Appeal, or honourable conduct by the Crown, as suggested by earlier decisions of this Court?

The Endako mine is within the traditional territory claimed by the applicant Stellat’en First Nation. The main Stellat’en community is located approximate 10 km away from the Endako mine. In 1965, the Crown granted the respondent Thompson Creek Metals Company Inc. rights to the Endako mine with the issuance of the M-4 Permit, pursuant to s. 10 of the Mines Act, R.S.B.C. 1996, c. 293. The mine commenced operation that year. This permit does not expire but because it regulates a wide range of mine operations, major changes in the mine will typically require the operator to obtain governmental approval for permit amendments. Terms of the permit require certain aspects of it to be updated and approved from time to time. In 2008, the respondent company began to apply for various permits that would allow it to modernize and expand mining operations. The respondent company’s application to amend its M-4 Permit allowing for construction of a new mill was ultimately granted.

The Supreme Court of Canada dismissed the leave application with costs.

http://scc-csc.lexum.com/scc-csc/news/en/item/4533/index.do

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-640-4029
SKerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law