On September 26, 2013 the BC Court of Appeal rendered its decision in Louis v British Columbia (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412. The decision is important because it addresses a number of common challenges and questions that arise in the consultation process (and for which aboriginal groups, governments and third parties often have differing views). More specifically, in this case, the BC Court of Appeal makes clear that:

  • The Crown's obligation to consult aboriginal groups in relation to a particular decision must not be used as a means to essentially revisit authorizations previously issued in respect of the same operation. Rather, the duty to consult in such context must focus on new or "novel" impacts of such further authorizations on asserted aboriginal rights and title.
  • Where a First Nation refuses to meaningfully participate in a consultation process, that will not prevent a court from finding that the Crown's duty has been met. This is true even where the First Nation declined to fully participate because it and the Crown held differing views on the consultation required.
  • The fact that a company relies on partial approvals without full and final approvals in place does not diminish the legitimacy of the subsequent decision making and related consultation.
  • There is no requirement for the Crown to engage in high-level or strategic decision making (where that is not otherwise being undertaken) in order to satisfy the duty to consult.
  • There is no requirement that a consultation process provide accommodation for past infringements.
  • Negotiation of Economic and Community Development Agreements (which typically include economic benefits) are separate from and do not assist the Crown in fulfilling the duty to consult and accommodate.

discussion

The case arose as a result of the proposed expansion of the Endako mine operations, which entailed a number of separate regulatory approvals to proceed rather than one overall approval. These regulatory approvals related to timber removal, use of water from nearby François Lake and several separate amendments to the original mine permit.

The Stellat'en First Nation took the position that it should be consulted about the overall expansion of the Endako mine – and whether that expansion should occur – as opposed to the various regulatory approvals. The Stellat'en First Nation also suggested that although consultation hadn't occurred in respect of the existing Endako operations, which date back to the 1960s, the expansion permit applications created the opportunity for such consultation and potential accommodation. Throughout the consultation that did occur, the Stellat'en First Nation suggested that the process was unreasonable, characterizing it as "piecemeal", and they did not fully participate in consultation opportunities.

In dismissing the Stellat'en First Nation's judicial review application, the BC Supreme Court had rejected their argument that the mine expansion and extension of the mine's life had novel impacts, finding that the length of the mine's life was entirely determined by the mine proponent (subject to meeting legislative requirements) – not provincial decision makers – because the existing mine permit did not expire.

Writing for the Court of Appeal, Justice Groberman agreed with the Crown and the Supreme Court's analysis that the mine expansion, resulting in the extension of the mine's life, did not result in novel adverse impacts on aboriginal rights and title. The Endako mine proponent owned land and mineral rights in the area where the expansion would occur. Justice Groberman noted in obiter that this was not a case where the Crown was divesting itself of property that could be subject to a finding of aboriginal title – a similar theme arose in the decision Ross River Dena Council v Government of Yukon, 2012 YKCA 14, also written by Groberman J.

The Court also rejected the Stellat'en First Nation's argument that the Crown had inappropriately determined that only minimal consultation was appropriate, finding that the consultation process was a "failure" because the Stellat'en First Nation refused to participate in the process. In this regard, Justice Groberman stated the following:

[92] As I have already indicated, the consultation process in this case was a failure. This was not because of an absence of effort on the part of the MEMPR, but rather a result of the parties' disparate views as to the nature of the required consultation. Because it misconstrued the nature of the consultation required, the Stellat'en refused to participate in the process. In those circumstances, it seems to me that the consultation undertaken by the MEMPR was as deep as it could be.

The Stellat'en First Nation also argued that consultation was required on the Crown's part at a high, strategic level as to whether the mine expansion should proceed. Justice Groberman, citing a lack of support for such an argument in the relevant case law, found that no such high-level decision was to be made by the Crown in this situation. Further, for each regulatory approval, the Crown made appropriate consultation efforts.

Finally, Justice Groberman commented on the relationship between consultation duties and Economic and Community Development Agreements (which typically include economic benefits) and noted that while such discussions can occur simultaneously, the latter do not assist the Crown in fulfilling the duty to consult and accommodate.