On September 26, 2013 the BC Court of Appeal released its decision in Louis v. British Columbia. The decision is a reaffirmation of the principles to be applied when Aboriginal groups seek consultation in respect of past wrongs or previous breaches of the duty to consult.
The province of British Columbia granted an indefinite permit to mine molybdenum at the Endako mine in 1965. The Endako mine is situated on land over which the Stellat’en First Nation ("Stellat’en") claims Aboriginal title rights and it considers the development of the mine without consultation to be a past infringement of its Aboriginal title.
The mine was reaching the end of its economic life sometime between 2011 and 2013 and had been projected to close. But with the price of molybdenum soaring, the operator developed plans for significant modernization and expansion of the Endako mine, including a small increase in the footprint of the mine. Separate regulatory approvals were required for each new permit but the regulatory framework does not provide for holistic consideration of a multi-phase project.
Without an overall review of the mine expansion project, Stellat’en refused to engage fully in the consultation process, asserting only that its traditional Aboriginal rights would be detrimentally affected, without identifying those rights.
The province conducted preliminary ethnohistoric research regarding the historic use of the project area and subsistence practices concluding that the area was used for hunting and gathering, and fishing. There are no known archaeological sites in the project area and it was noted that there has already been significant disturbance on the project area. Therefore the potential impacts of the projects were low. The province considered it had fulfilled its duty of consultation as required to maintain the honour of the Crown.
Stellat’en characterized the expansion project as a fundamental change because it meant that the land would be mined years to come instead of being reclaimed by Stellat’en on the closure of the mine in a few years’ time. The chambers judge found that there was no novel impact as a result of the expansion than already existed in terms of the existing permit.
The Court of Appeal's Judgment
Dealing with the first ground of appeal, the court said that allowing the mine to continue operations for longer than originally envisaged is not a novel impact. The Crown had already divested itself of land that might be subject to Aboriginal title several decades ago. Although the mine was projected to close between 2011 and 2013, there was no actual requirement for it to close. The duty to consult represents a balance between the proper consideration and respect of asserted Aboriginal interests on the one hand and the existing rights of the applicant on the other hand.
The second ground of appeal pivoted on the depth of consultation required by the province to satisfy the honour of the Crown. The court held that the consultation was as deep as it could be, considering he lack of meaningful engagement by Stellat’en in the consultation process.
The third ground of appeal was in relation to the province's incremental consideration of the applications. The court agreed with the chambers judge that the considerations were not a sham and also that approval of one aspect at one stage did not inexorably lead to approval of other aspects at the later stages.
In relation to the lack of high-level consideration of the project overall, the court reviewed the established law on the duty to consult, finding that it is incumbent on the Crown to engage in consultations form the earliest stages of the project. The province extended opportunities for consultation to Stellat’en when it made the earliest of decisions on the expansion project. It was Stellat’en's refusal to co-operate until alleged past infringements were addressed that derailed the consultation. Accordingly, the honour of the Crown was upheld by the province.
In 2010, the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43,  2 S.C.R. 650 established that “An underlying or continuing breach, while remediable in other ways, is not an adverse impact for the purposes of determining whether a particular government decision gives rise to a duty to consult.” (para. 48.) In the Rio Tinto case, there was no new impact and the duty to consult did not arise.
Since the Rio Tinto decision, there has been ongoing debate about what happens when there are both (i) historic impacts; and (ii) new impacts arising from the currently contemplated decision. Clearly, consultation could be triggered in respect of the new impacts, but (the debate asked) would that consultation then have to also include consultation on the historic impacts? The Court of Appeal’s decision resolves this debate in concluding that the Crown did not err in conducting consultations on a piecemeal basis focused on the new impacts (only) arising from the current decision.
This decision provides greater certainty for project developers regarding the scope and extent of consultation.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.