B.C.’s Highest Court Releases Significant Decision on Government Approvals for “Brown Field” Sites

On September 26, 2013, the British Columbia Court of Appeal dismissed an appeal by the Stellat’en First Nation (Stellat’en) and confirmed that Crown consultation was adequate in granting the approvals for the Thompson Creek Metals Company Inc.’s (Thompson Creek) Endako mine expansion (Expansion).

Issue

In 2008, Thompson Creek applied for various permits to expand and modernize mining operations, including the construction of a new mill at their Endako molybdenum mine, which was located within the Stellat’en traditional territory.  The Crown attempted to engage in consultation with Stellat’en but the Stellat’en had different views from the Crown and Thompson Creek as to the appropriate scope of consultation required.  The Stellat’en applied for declarations that the consultation had been inadequate, but the chambers judge dismissed the application.

At issue in Louis v. British Columbia (Minister of Energy, Mines and Petroleum Resources) was whether:

  • the impact of the proposed expansion constituted a novel adverse impact on asserted Stellat’en Aboriginal rights;
  • the chambers judge erred in finding that the Crown needed to engage in only minimal consultation; and
  • the incremental consultation process conducted by the Crown was sufficient.

The Stellat’en claimed that the decisions which allowed the mine expansion to go ahead had novel adverse impacts on their Aboriginal rights because the mine was scheduled to shut down between 2011 and 2013 and the Expansion would result in a significant extension of the life of the mine.  Furthermore, the Stellat’en argued that the Crown was required to engage in consultation that dealt with the entirety of the expansion project rather than consultations for each individual regulatory approval that was necessary for the mine expansion. 

Appeal Decision

The Court of Appeal upheld the lower Court’s decision that the mine expansion did not constitute a novel adverse impact on Stellat’en’s claimed Aboriginal rights, predominately due to Thompson Creek’s pre-existing right to mine.  The Court of Appeal noted that the Crown had divested the mining rights to Thompson Creek decades ago and the existing permits allowed extensive disturbance of the mine-site and that the Expansion would only result in a relatively small increase to the mine’s footprint.  Although Thompson Creek had projected the mine would close between 2011 and 2013, the M-4 permit that authorized mining had been granted for an indefinite period and as such, it was entirely within Thompson Creek’s discretion to determine the timing of the mine closure.  

The Stellat’en did not present evidence of any serious novel adverse effects to their Aboriginal rights that would be caused by the construction of the mine expansion. The Court of Appeal emphasized the importance for First Nations to identify particular adverse impacts on their asserted rights that could result from an approval. The Court of Appeal said that an application for regulatory approval must be considered on its merits. While the Crown must engage in consultation, it cannot use its regulatory discretion to undermine the existing rights of a proponent.

The Court of Appeal also held that the Crown had not engaged in minimal consultation.  The Court pointed to the Crown and Thompson Creek’s continual attempts to engage the Stellat’en in the consultation process. However, because the Stellat’en misconstrued the nature of the consultation required, the Stellat’en refused to participate in the engagement process. 

Lastly, the Court of Appeal found that the Crown’s piecemeal approach to the consultation process was sufficient.  It was noted that the mine expansion was not a Crown initiative and the process followed by the Crown did not include high-level or strategic planning.  The Court of Appeal agreed with the lower Court’s conclusion that “approval of one aspect of the project [did] not inexorably lead to approval of aspects at the later stages.”  Accordingly, the Court of Appeal stated that the Crown’s mandate was limited to considering the individual regulatory applications and it was therefore reasonable for the Crown to consult Stellat’en on those applications individually. 

Significance for Resource Developers

This decision confirms that prolonging a development will not necessarily result in a novel adverse effect on Aboriginal rights, especially for projects involving relatively small and highly-disturbed areas. First Nations should identify particular adverse impacts on their asserted rights. The Court of Appeal confirmed that Aboriginal peoples cannot use their lack of participation in the consultation process to assert that the Crown has engaged in minimal consultation.

When the Crown is not carrying out high-level or strategic planning for a project and its mandate is limited to considering individual applications, the decision establishes that the Crown can conduct consultations on a piecemeal or incremental basis.  The consultation and regulatory process for incremental approvals should not be used by the Crown as a tool to undermine the existing rights of applicants.