On August 5, 2011, Mr. Justice Crawford issued a decision in Louis v. British Columbia (Energy, Mines and Petroleum Resources), 2011 BCSC 1070, finding that the Crown had fulfilled its duty to consult and had acted honourably in its efforts to consult the Stellat'en First Nation on a proposed expansion of the Endako Mine by Thompson Creek Metals Company Inc. ("Thompson Creek").
Justice Crawford essentially applied the principles from the Supreme Court of Canada's decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (Rio Tinto), and limited the scope of consultation to impacts from the expansion, rather than the already existing mine. Viewed in that light, Justice Crawford found the consultation to be sufficient, especially in light of the Stellat'en's insistence on consultation and accommodation in relation to the whole of the mining operation (which had been in operation since the 1960s).
While following existing law and also confirming the Supreme Court of Canada's decision in Rio Tinto that there is no duty to consult on past infringements, Justice Crawford's decision has a useful discussion of various indicia of adequate consultation and also discusses the role of third party consultation in satisfying the Crown's duty.
The Endako Mine is located approximately 8.5 kilometres southwest of the town of Endako, which is 190 kilometres west of Prince George, British Columbia. It is an open-pit molybdenum mine and has been in operation since 1965, processing 28,000 tonnes of ore daily. Thompson Creek is the 75% owner and operator of the Endako Mine. Thompson Creek holds an "M-4 Permit" under the Mines Act, R.S.B.C. 1996, c. 293. This permit grants it the general right to mine and is not subject to expiry or time limitations.
Thompson Creek sought to expand the mine in response to higher commodity prices to process lower grade molybdenum more rapidly through the construction of a larger and more advanced mill. The new mill required an amendment to the M-4 Permit. The other effects of the expansion, such as the merging of the three open pits, did not require an amendment.
Beginning in late 2007, Thompson Creek began canvassing stakeholders about their intention to pursue the expansion. This was done independent of the Crown. In early 2008, Thompson Creek gave notice to the Crown and began the formal process leading to the expansion. This also started the concurrent engagement between the Crown and the Stellat'en, and was the first instance at which the Crown requested the Stellat'en to provide input on the process.
In the weeks that followed the Crown's request for input and notice of Thompson Creek's intentions, the Stellat'en communicated their desire to begin consultation immediately to find out whether the expansion could take place. They also sought to address the issue of whether they were adequately consulted and accommodated when the Endako Mine originally opened in 1965.
From April to October of 2008, the Crown and Thompson Creek made a series of attempts to engage the Stellat'en in the process related to the then-proposed expansion. Justice Crawford aptly summarizes the back and forth and noted the limited willingness of the Stellat'en to meet with the other parties, as well as the limited detail provided by the Stellat'en to the other parties regarding the alleged infringement of their Aboriginal rights. On October 29, 2008, the requisite amendment was granted by the Ministry to the M-4 Permit allowing construction of the new mill to proceed.
Market factors delayed the construction of the new mill through most of 2009, and it resumed in August of that year. A final in-person consultation was held in September of 2009 involving all major stakeholders, but was unable to produce a solution to the impasse.
One issue that produced friction between the parties was revenue-sharing. The Crown had attempted to negotiate a revenue-sharing framework with the Stellat'en based on the expansion and the increased production levels at the mine. The Stellat'en sought to structure revenue-sharing based on production from the entire Endako Mine. They argued that basing a revenue-sharing agreement on increased production levels from the expansion was not reflective of the true impacts the expansion would have on their rights and interests. This issue between the parties remained unresolved at the conclusion of negotiations.
As Justice Crawford observed (at paragraph 92), "[i]n short, Stellat'en took the view that no expansion could proceed without completing consultation, but there was no point in carrying out that process, as consultation had not been meaningful and, therefore, they would pursue litigation." The Stellat'en's petition was filed in Supreme Court in Vancouver on May 18, 2010. The hearing began February 28, 2011.
At issue before the Court were petitions seeking "judicial review and a number of orders on the primary basis that the provincial Crown, namely the B.C. Ministry of Energy, Mines and Petroleum Resources, failed to adequately and meaningfully consult them and, if necessary, accommodate their concerns in relation to a mine located on land over which the Stellat'en have asserted and continue to assert Aboriginal title and rights."
The Crown made two concessions about the test (from Haida v. British Columbia (Minister of Forests), 2004 SCC 73 at para. 35 (Haida)) for whether they have a duty to consult and accommodate the Stellat'en. First, the Crown admitted that it had knowledge, actual or constructive, of the potential existence of the Aboriginal title or right. The Crown also admitted that the Crown contemplated conduct or proposed the decision related to the Expansion. The third branch of the test, whether that decision may have an adverse impact on the claim of the Stellat'en, was the focus of the Justice Crawford's decision.
Justice Crawford determined (at paragraph 156) that, "[c]onsultation did not readily 'get off the ground' because Stellat'en insisted on discussing alleged past infringements of their asserted Aboriginal title and rights with respect to the opening of the original mine back in 1965 and its continuing operation since then." He went on to dismiss Stellat'en's argument on past infringements based on the Supreme Court of Canada's decision in Rio Tinto. In Rio TInto, the Court held that historical claims are not the subject of consultation or judicial review, although they may give rise to other things such as awards of damages.
After finding that the Minister did not have to consult on the historic presence and use of the Mine, the Court turned to whether the Crown correctly assessed the scope and content of its duty.
In examining the Minister's preliminary assessment of the strength of Stellat'en's claims and consideration of the seriousness of potential adverse impacts of the permitting process on those claims, the Court considered a number of factors. First, it was accepted that the Stellat'en had a relatively strong claim. However, the overlapping claims of the Nadleh Whut'en, another First Nation, affected the strength of Stellat'en's claim, especially regarding the exclusivity of their asserted title interests and rights. Also, the fact that the new mill was located on land held by Thompson Creek in fee simple impacted the Crown's assessment and reduced the strength of Stellat'en's claim. All three Crown considerations were found to be appropriate by the Court.
Justice Crawford then considered the seriousness of potential adverse impacts as expressed by the Stellat'en. These included the loss of the right to extract additional minerals, prolonged loss and more extensive damage, health and safety effects, and pollution and decreased water quality. In response to these claims, Justice Crawford concluded (at paragraph 175): "I accept as correct Crown's consideration that potential adverse impacts arising from [the Minister's] decision to amend the M-4 Permit would be low in terms of seriousness. In my view, [the Minister] fared well at this step of the Haida test, given Stellat'en's failure to articulate, with any specificity, the nature of its asserted title and rights." The low level of seriousness applied by the Court impacted the scope of the consultation duty.
Finally, the Court considered whether the Crown's consultation efforts were reasonable. Justice Crawford found that the Minister's engagement with the Stellat'en satisfied the appropriate test from Haida and identified a number of indicia in support of this conclusion such as finding that the Crown moved quickly to address issues of consultation, it initiated consultation early, it continually and openly shared information and it listened to concerns and responded. The full discussion can be found at paragraphs 202 to 220 of the decision.
Justice Crawford then discussed the reciprocal duties on the Stellat'en to engage in the consultation process in good faith. Justice Crawford found that the Stellat'en failed to properly respond to the Minister's "numerous good faith attempts" to determine their specific concerns from the proposed expansion. Justice Crawford characterizes the dynamics of this reciprocal duty as a "give and take" (paragraph 226).
The Court then commented on the role of third parties in the greater consideration of the reasonableness of the Crown's consultation efforts. This resulted from the Crown and Thompson Creek's arguments that the Court should consider the efforts of Thompson Creek in assessing the reasonableness of the Crown's execution of its duty to consult.
The Court acknowledged that Thompson Creek had, and continues to have, chances to consult and accommodate the interests of Stellat'en on their own but considered that it was restricted by the caselaw to focus exclusively on the Crown's duties because the Crown bears ultimate responsibility for meeting its constitutional duty. Justice Crawford noted that the case law confirms that the Crown may rely on third party executing procedural matters but the precise extent of this remains unclear. Justice Crawford also recognized the potential for uncertainty for an Aboriginal community about when and to whom they are engaged in consultation with, for the purposes of the duty to consult but noted that this issue could be overcome if the Crown is explicit in its delegation. Ultimately, Justice Crawford found that since he had concluded that the Crown had met its duty, he did not have to come to a determination on this issue and therefore his comments on this issue do not form a binding part of his judgment.
Implications of the Decision
The Stellat'en decision reaffirms a number of important aspects of the law relating to aboriginal consultation:
- It is another example of the courts reaffirming the conclusion in Rio Tinto that Aboriginal groups cannot use past alleged infringements of their asserted Aboriginal title to broaden consultation on proposed developments or in subsequent judicial review proceedings. This conclusion will likely also impact the negotiation of revenue sharing agreements, re-enforcing the Crown's views that they should be limited to new projects and expansions rather than dealing with past issues.
- The decision also emphasizes the impact of overlapping claims on the strength of a First Nation's asserted title interests and rights. Justice Crawford found that the overlapping claims were very likely to affect the strength of Stellat'en's own claim to the same area.
- As indicated, Justice Crawford's review of the Crown's consultation efforts provide a useful catalogue of many of the indicia of reasonably consultation.
- Also highlighted was the importance of the reciprocal aspect of consultation. Stellat'en did not communicate the specific Aboriginal interests at risk and Justice Crawford could not identify a "minimal willingness to cooperate".
As indicated, the Court in its non-binding commentary also raises some questions regarding the role of third parties in consultation with First Nations. It will remain to be seen if this issue will be raised in other venues and, if so, if other decisions agree with Justice Crawford's comments on this issue.