Louis v. British Columbia (Energy, Mines and Petroleum Resources).

The Stellat’en First Nation (Stellat’en) sought judicial review of, among other things, an amendment to a mining permit issued in October 2008 by the Ministry of Energy, Mines and Petroleum Resources to Thompson Creek Metals Company Inc. (Thompson Creek). The company required the permit in order to build a larger, more technologically advanced mill less than 100 metres from its current Endako mine, an open-pit molybdenum mine that has been in nearly continuous operation since 1965. The new building was being constructed on previously disturbed land held in fee simple by Thompson Creek. The Stellat’en assert Aboriginal title over all the lands in question, including lands on which the existing mine was situated. The parties were in agreement that the Crown had a duty to consult with respect to the amendment to the permit. The Court first considered whether the Crown had correctly assessed the scope and content of its duty, and found that it had. The Crown correctly tempered its initial assessment of the strength of the Stellat’en claim by considering that Thompson Creek held the land in fee simple, and that the potential adverse impacts arising from the amendment would be low in terms of seriousness. Finally, the Court reviewed the Crown’s consultation efforts, on a standard of reasonableness, and determined that the Crown adequately discharged its duty and maintained the honour of the Crown. The Crown had initiated consultation very early in its decision-making process; it continually and openly shared information; it repeatedly encouraged the Stellat’en to make submissions and express specific concerns; it provided the Stellat’en with explanations for why and how decisions were made; and it persisted in the consultation process despite the Stellat’en’s repeated failure to provide input on specific impacts of the proposed expansion. On this last point, the Court accepted the Crown’s argument that there is a “reciprocal duty” on the First Nation to engage in the consultation process in good faith. The Court noted that the Crown “cannot be expected to fulfill its duty to consult in a vacuum” and that there must be some willingness on the part of the First Nation to co-operate in the process. 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.