The Supreme Court of British Columbia allowed a petition brought by an Aboriginal group in relation to whether a mining project had “substantially started” within the meaning of s. 18(5) of the provincial Environmental Assessment Act. The Court ordered the Minister to make a fresh determination of this issue after proper consultation with the petitioners. The Court held that the Minister had failed to properly consult the petitioners in regards to a determination made in 2012 that the mining project had substantially started. Mr. Justice Macintosh held, in the alternative, that the petitioners had a legitimate expectation of being consulted about the issue, and the Minister breached the doctrine of procedural fairness.

The underlying mining project is located in the northwestern corner of British Columbia, near the borders with Yukon and Alaska. It was the subject of earlier litigation that reached the Supreme Court of Canada in 2004 along with the Haida Nation decision. The Supreme Court of Canada concluded that the environmental assessment process in 1990s had satisfied the Crown’s duty to consult: [2004] 3 S.C.R. 550. The Court held that the Taku River Tlingit’s claim to Aboriginal title was a relatively strong one, and the mine would have a high impact. Macintosh J. noted the following comment in the SCC judgment:

… it is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if indicated, accommodate the TRTFN.

A project approval certificate was issued to the original project proponent Redfern in December 2002. Pursuant to section 18(1) of the EAA and the terms of the EA certificate, Redfern was required to have “substantially started” the project within five years (December 2007). Section 18 provides the Minister with the authority to grant an extension of this deadline, for a maximum of five years, but such extension can be made “on one occasion only”. Subsection 18(5) stipulates that the EA certificate expires if the project had not been substantially started by the deadline. On the other hand, subsection 18(6) provides that if the Minister determines that the project has substantially started, then the EA certificate remains in effect for the life of the project (subject to cancellation or suspension).

In 2007, Redfern obtained a 5-year extension, thereby moving the deadline for “substantially starting” the project to December 12, 2012. The respondent Chieftain Metals took over the project in 2010. It applied for a determination in 2012 that the project had indeed “substantially started” within the meaning of section 18(5). The associate deputy minister made a determination on May 30, 2012 that the project had substantially started.

No notice was given to the Taku River Tlingit prior to the s. 18(5) determination. They then applied for judicial review.

Macintosh J. dismissed the argument of the petitioners that the wrong person had made the s. 18(5) determination. He found no requirement in the legislation that the Minister must make the determination, rather than an associate deputy minister. Section 23 of the Interpretation Act provides that the words in an enactment empowering the Minister to do something also includes an associate deputy minister.

The Court also rejected the argument that the section 18(5) determination was wrong, or below the Dunsmuirstandard of “reasonable”. Macintosh J. considered the meaning of “substantially started” with reference to dictionary definitions, and also the Environment Assessment Office’s user guide. The focus should be on what has taken place physically at the site, and whether the project has started “in a real and tangible way”. The decision-maker needs to focus on physical activities that would have a long-term impact on the site. Macintosh J. noted that the “record” before the Minister in this case was modest: a four-page letter from Chieftain Metals, and a short decision note from the Environmental Assessment Office. The Court excluded detailed affidavit evidence filed by the Taku River Tlingit in this application. New evidence is only admissible in judicial review proceedings if it falls within narrow categories, such as relating to allegations of lack of jurisdiction. Such exceptions did not apply here. Based upon the modest record before the decision-maker, it could not be said that the decision was unreasonable.

The Court accepted the arguments of the Taku River Tlingit concerning the Crown’s duty to consult. It was conceded that the Crown had not consulted the petitioners prior to the section 18(5) decision, or even provided them with notice. Macintosh J. accepted that if the Taku River Tlingit had been properly consulted, the decision maker would have received extensive information relevant to whether the project had substantially started. The decision-maker would not have made the decision based upon a modest record that was “one-sided”.

The Court found that the duty to consult was triggered in this case. The Crown had knowledge of the potential existence of aboriginal rights or title, and contemplated conduct that might adversely affect it. Macintosh J. rejected the argument that the s. 18(5) decision would have no adverse impact on the Taku River Tlingit. He contrasted the facts of this case with the Rio Tinto decision:

Here, by contrast, the Crown conduct in finding that the project was substantially started directly affects what may happen at the project site in the TRT’s claim territory. In the context of s. 18(5), if a “substantially started” finding is not made, the environmental assessment certificate expires. Without the certificate, the mine cannot be built. The significance of the “substantially started” determination in s. 18(5) is seen in s. 18(6); after a project is substantially started, the certificate remains in effect for the life of the project, subject only to supervisory powers provided later in the Environmental Assessment Act.

Analytically speaking, the facts here are the opposite of those in Rio Tinto in connection with the third criterion for consultation. Whereas the government conduct in that case could have no physical impact whatever on the claim territory, the government conduct under s. 18(5) could be determinative of whether a project even exists in the claim territory.

Macintosh J. also distinguished the B.C. Court of Appeal decision in Louis v. British Columbia (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412 on the basis that the mining company in Louisalready had a valid mining permit, whereas Chieftain Metals has no such right here unless it can obtain the section 18(5) determination. Without that determination, its rights under the EA certificate expire.

The Court rejected the argument of the respondents that there was “really no role” for the Taku River Tlingit in the process leading up to the s. 18(5) determination. The petitioners had extensive evidence to offer, directly relevant to the issue at hand, and such evidence was “entirely missing from the record” before the decision-maker in May 2012. Involving the petitioners at this stage did not involve conflating the project and the s. 18(5) declaration, as argued by Chieftain Metals, but constituted “limited consultation on the narrow and new question of whether the project can still proceed in the face of so many years of delay, when measured against the time-sensitive provisions of s. 18”.

In the alternative, the Court would have allowed the petition on the basis of administrative law principles such as procedural fairness. Macintosh J. noted that the jurisprudence relating to the duty to consult was derived (at least in part) from concepts established in administrative law. He questioned whether the law on consultation had completely replaced administrative law rules, or whether there is still room for an independent administrative law analysis. He commented: “I do not see why an administrative law approach cannot survive in this context, provided that it does not clash with what are now well-established tests in the duty to consult analysis”.

Macintosh J. held that the Crown’s practices, conduct or representations in dealing with the project over the past two decades “have been clear, unambiguous and unqualified in giving the Petitioners a reasonable expectation that they would be consulted before a decision was taken, which was possibly, in this case obviously, contrary to their interests”. The doctrine of legitimate expectations therefore also leads to the result that the petition must be allowed.

The Court held that the section 18(5) determination needs to be made again. The question was remitted back to the Minister. The Crown was ordered to consult with the Petitioners by giving them 45 days’ notice in which to present whatever written submissions they select. Such submissions must be properly considered in good faith, and take into account the Court’s interpretation of s. 18(5).

Decision available here.