Consultation and Accommodation Deemed Adequate in Latest BC Mine Decision

In the Fort St. John area of British Columbia, Canadian Kailuan Dehua Mines Co. Ltd. (“CKDM”), a Chinese company, is planning to execute the Gething Bulk Sample Project (the “Project”). The Project:

“involves the excavation of two underground declines (ramps) of approximate length 337m and 360m to access the target coal seam, and the extraction of a 100,000 tonne coal bulk sample…”

The Project is also situated within the Treaty 8 reserve lands of the West Moberly First Nations (“WMFN”). Once again, a B.C. court has been asked to determine whether there was adequate consultation and accommodation before the decisions were made to allow the Project to proceed.

Treaty 8 promises WMFN the right to pursue their usual vocations of hunting, trapping and fishing, but that right is “subject to such regulations as may from time to time be made by the Government … and saving and excepting such tracts as may be required or taken up … for mining…”

One issue that the B.C. Supreme Court had to address was an earlier decision (West Moberly No. 1 (2011)) in which a similar coal development program was put on hold after the B.C. Court of Appeal held that there had been inadequate consultation. Would West Moberly No. 1 be applied or distinguished in this case?

While both matters concerned small herds of caribou that are at risk of extirpation, the project under consideration in West Moberly No. 1 was found to be located in an area integral to the life of the caribou. In distinguishing West Moberly No. 1, the B.C. Supreme Court held, in this case, that the Project was at a lower elevation and further north and that, unlike in West Moberly No. 1, no government expert had expressed any concerns about the welfare of the caribou.

Justice MacIntosh ultimately found that consultation and accommodation had been adequate in this case. Once again, there was evidence that a First Nation had been “reluctant or simply slow in bringing their information to the table” and the court again identified the principle that “[c]onsultation is a two-way exercise”. For more on that, see my earlier post: here.

In his concluding remarks, Justice MacIntosh summarized some principles of the duty to consult, as follows:

[146] Consultation and accommodation are called for to ensure that the Crown honours its treaty and other obligations with First Nations, instead of merely paying lip service to First Nation rights. Honourable consultation and accommodation are the protectors against the Crown barging ahead as if treaty rights were only cosmetic.

[147] In addressing allegations that the Crown has breached its duties, a court must look beyond only the allegations, and see what the facts demonstrate as to inadequate or dishonourable Crown participation. Of course, that exercise, in essence, is the task of a court in almost every case coming before it, i.e., to look beyond mere allegations. I raise the point in the context of consultation-accommodation cases because these cases raise a particular difficulty in relation to judicial review. The fact that more study, more consultation and more accommodation would nearly always be possible raises the risk of inadequate consultation being found simply from the fact that the further consultation could have been carried out when it was not. The analysis has to refine itself, to asking whether some relevant block of data was omitted, or some particular, reasonable, First Nations’ request was ignored, as two examples.

[148] From my assessment of the evidence, placed in its context by the parties’ submissions, I was unable to see a material deficiency in the consultation or the accommodation. Nor did the evidence show anything in the nature of dishonourable Crown conduct. Consultation is a two-way exercise. From time to time in the consultation exercise here, the West Moberly were reluctant or simply slow in bringing their information to the table. The Crown cannot be faulted for that, provided the Crown carried on, and assured itself that it had obtained the information it required in order to know the circumstances and consult adequately.

I suspect that, should the Project reveal a viable mining opportunity for CKDM, we should not be surprised to see these parties before the courts again.

By James Early