Canada: B.C. Environmental Appeal Board Reaffirms Importance Of Good Faith Participation By First Nations In Consultation Process

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Issues, June 2008

A recent decision of the B.C. Environmental Appeal Board upheld Crown consultations with the Xats'ull First Nation regarding a proposed permit for discharge of mine effluent. While the Crown's conduct of the consultation process was not perfect, the Board held that it was adequate in circumstances where the Xats'ull had refused to fully engage in the consultation process. The Board's decision serves as a reminder of the principle set out in Haida and other cases that consultation is a two-way process, requiring good faith participation on all sides.

BACKGROUND

Gibraltar Mines Ltd. owns a copper and molybdenum mine near the Fraser River, between Quesnel and Williams Lake. Gibraltar applied to the Director, Environmental Management Act for an amended permit under the Act to discharge effluent, containing copper, cadmium and other metals, into the Fraser River. The proposed discharge point is at Marguerite, some 25 kilometres upstream from the main Xats'ull reserve and community at Soda Creek. Xats'ull claims aboriginal title to the area including Soda Creek and Marguerite, and claims aboriginal rights to fish for salmon and sturgeon in the Fraser River.

After endeavouring to engage in consultations with the Xats'ull for about a year concerning the Permit application, the Director issued the Permit to Gibraltar in April 2006. The Xats'ull appealed the Permit to the Board on issues of environmental and aboriginal law.

ENVIRONMENTAL ISSUES

The Board found that the environmental assessment reports commissioned by Gibraltar and accepted by the Director failed to sufficiently address the impact of the proposed effluent discharge on sturgeon in the Fraser, particularly given that sturgeon are an endangered species. The Board also held that the Director had inadequately addressed water quality issues, because there was insufficient information as to how the proposed effluent discharge would change the concentrations of copper and cadmium in the river. Finally, the Board directed that the Director enhance the post-operation monitoring and assessment of the impact of the discharge, and review the Permit after the first or second full year of operation. The Board sent the Permit back to the Director for reconsideration of these issues.

CONSULTATION OF XATS'ULL FIRST NATION

The Director acknowledged that the Crown had a duty to consult Xats'ull regarding any potential impacts of the Permit upon their asserted aboriginal rights and title. The Board held that the level of consultation required by the Crown in this case was in the middle of the spectrum: more than just notice, but not the "deep consultation" referred to in Delgamuukw and other cases.

Moderate consultation was indicated by the modest impact of the proposed discharge on Xats'ull rights and title. The Board reasoned that the Xats'ull title claim in the Marguerite region is attenuated, in part, by overlap with the territories of other First Nations. In the Soda Creek area where the Xats'ull aboriginal title claim is strongest, the effluent would be diluted such that harmful effects would be negligible. Similarly, the effluent would have little effect on the Xats'ull right to fish for salmon. Sturgeon, while potentially impacted, were not shown to be very significant to the Xats'ull.

The majority of the Panel found that consultation by the Director, while not perfect, was adequate. The Director gave Xats'ull notice of the Permit application, held a community meeting where questions could be asked, and accommodated some Xats'ull concerns. The Director delegated much of the Crown's consultation obligations to Gibraltar, as has become increasingly common, but the Director monitored those discussions.

By contrast, the Board held that the Xats'ull failed to meet their responsibilities in the consultation process by not participating in the consultation process in good faith. First, the Xats'ull refused to meet with or respond to the Director's inquiries for a period of time, saying they would only discuss matters with Gibraltar. As a result, the Director found it difficult to assess impacts of the proposed discharge on Xats'ull asserted rights. Second, a Xats'ull representative suggested to Gibraltar that they would delay the consultation process unless Gibraltar complied with a series of monetary demands. That message ended Gibraltar's efforts to work with Xats'ull. The Board found that Xats'ull's conduct verged on sharp dealing.

Third, the Xats'ull asserted that the proposed discharge would disrespect their aboriginal values, but also pursued a joint venture with Gibraltar in connection with the proposed discharge. The Board judged that Xats'ull were more interested in economic benefits, and that the claim of impact on aboriginal values may have been "disingenuous".

CONCLUSION

The compensability of impacts on asserted aboriginal rights and title are now part of most consultation discussions. However, First Nations cannot endeavour to delay or frustrate the process by requiring economic benefits without identifying site-specific rights and impacts upon which accommodation is founded. While the Crown and proponents must consider available information concerning aboriginal interests, aboriginal communities must also endeavour to provide such information when sought. Bad faith conduct by First Nations will be harshly judged by adjudicators like the Board, and may also reduce the opportunity for achieving an impact benefit agreement with a project proponent. In this case, the Board upheld the Director's decision to issue a Permit even though Xats'ull did not reach agreement with Gibraltar.

The Board's decision also highlights the significance of territorial overlap. Unless First Nations achieve some level of agreement with their neighbours as to the nature of their respective boundaries and their respective interests in any areas of territorial overlap, adjudicators may limit the Crown's consultation obligations in those areas.

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