Columbus' Ghost: Past Infringements and the Duty to Consult

By Bruce McIvor

Case Comment on Louis v. British Columbia (Minister of Energy, Mines, and Petroleum Resources), 2013 BCCA 412 

When it comes to upholding the honour of the Crown, there is no clean slate. As much as governments may wish otherwise, Indigenous peoples throughout Canada continue to demand recognition of and redress for past wrongs. The B.C. Court of Appeal’s recent decision in Louis exemplifies the continuing uncertainty over whether and when the duty to consult and accommodate is the proper forum for addressing unresolved infringements of Aboriginal rights, title and Treaty rights.

What it is about

In 1965 British Columbia authorized an open-pit molybdenum mine in Stellat’en territory about 200 kilometres west of Prince George for an indefinite period. In 2003 the mine operator, Thompson Creek Metals, estimated the mine would close in approximately 10 years. However, in 2007 Thompson Creek Metals decided to extend the life of the mine by expanding and modernizing its operations. Its plans required amendments to its primary mining permit as well as a series of other authorizations.

The Province restricted its consultation efforts with the Stellat’en to the specific new effects of each individual amendment and authorization required for the expansion. The Stellat’en insisted on consultation on the proposed mine expansion as a whole and that it include the effects of the mine’s 40-plus year history of operations. The BC Supreme Court endorsed the Province’s approach and the Stellat’en appealed.

What the Court said

The Court of Appeal concluded that because there was no high-level or strategic Provincial decision requiring consultation on the project as a whole, the Province was correct to consult with the Stellat’en on a piecemeal basis, considering each permit or amendment application separately. Importantly, the Stellat’en did not identify any potential adverse effects due to the individual authorizations. Therefore, according to the Court, the Province had fulfilled its legal obligation to consult.

While it acknowledged that the practical, cumulative effect of the Province’s authorizations was to extend the life of the mine, the Court held that this was not a new adverse impact on Stellat’en Aboriginal title and rights because the mining company had long ago acquired from the Province title to the land and the minerals.

Why it matters

Across Canada, Indigenous peoples endure the accumulated history of the denial of their Aboriginal rights, title and Treaty rights. Whether the duty to consult applies to past, existing and ongoing infringements of these rights is one of the most important outstanding questions in Aboriginal law.

For over a hundred years mines were dug, dams built and roads pushed through without serious consideration for the rights of Indigenous people. Following the Supreme Court’s 2004 Haida decision, Indigenous peoples began to consider whether the duty to consult and accommodate might open the door for addressing these past, existing and ongoing failures to consult and accommodate.

For some, the Supreme Court’s 2010 Rio Tinto decision appeared to slam shut that door. The decision can and has been read to exclude past, existing and ongoing infringements from the duty to consult and accommodate. But, as the BC Court of Appeal observed in West Moberly, this is likely a misreading of the decision.

The Supreme Court in Rio Tinto was focused on the question of when the duty to consult arises, not the content of consultation once the duty is triggered. The Court held that historic or past infringements, on their own, do not give rise to a fresh duty to consult. For those wrongs, Indigenous peoples’ only viable legal option is to sue the government for damages.

But the Court in Rio Tinto left the door open on two important issues. First, the Court clarified that it was not answering the question of whether continuing and ongoing infringements might trigger the duty to consult—that was an issue for another day. Second, the Court indicated that if new adverse effects did trigger the duty to consult, a prior or continuing breach of the duty might be part of consultation and accommodation discussions.

Where does this leave the B.C. Court of Appeal’s recent decision in Louis? The only way to read the decision consistent with Rio Tinto and West Moberly is to understand it is another case, like Rio Tinto, primarily about whether there were new adverse effects on Stellat’en Aboriginal title and rights sufficient to trigger the duty to consult. The Court concluded there were not. When the Court in Louis commented that the Province did not have to include past infringements in the consultation process, it must have meant that this was because a fresh duty to consult had not been triggered. Otherwise, the decision is out of line with Rio Tinto and West Moberly.

The wrongs of colonization are written on the lands of the Indigenous peoples of Canada. Indigenous peoples witness and endure them on a daily basis. Whether the duty to consult and accommodate is capable of at least partly addressing these wrongs remains an open question.

Read the full decision.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

Download Bruce's bio

Contact Bruce

Follow Bruce on LinkedIn and Twitter 

For more First Peoples Law analysis, visit our blog

Sign up for our Aboriginal Law Report