Chetwynd, Taseko and the Duty to Consult – Meaningful Interest-based Dialogue

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Chetwynd, Taseko and the Duty to Consult – Meaningful Interest-Based Dialogue

The mining industry has a fundamental interest in ensuring that effective interest-based consultation occurs with Aboriginal groups who have claims over potential mining properties.

Federal and Provincial governments are duty-bound to consult with, and accommodate, First Nations groups whenever the Crown’s actions may impact a potential Aboriginal right or title interest.  They may delegate procedural aspects of the consultation.  In the mining industry, companies are increasingly caught in the middle, often asked to shoulder some of the burden and cost.   The duty to consult is not specifically directed at mining companies but their plans are inextricably linked to it.  The following examples illustrate the difficulties faced by the industry, showing that the more collaborative the companies are, the easier it may be for the Crown to satisfy consultation obligations.

On September 1 and 14, 2009, the BC government granted amendments to existing permits held by First Coal Corporation, allowing them to take a bulk sample of coal and implement an exploration program near Chetwynd BC.  The West Moberly First Nations applied to the BC Supreme Court to quash the amendments, as the land was subject to their traditional right to hunt caribou and the amendments would have a detrimental impact on the Burnt Pine caribou herd.

First Coal had retained consultants, funded caribou monitoring, retained a wildlife biologist, closed a controversial road and participated in a number of meetings with biologists and First Nation Groups.  It took steps to inform its employees and visitors to the area about procedures and practices that would ensure minimal impact on the caribou.

In its landmark March 19, 2010 decision, the Court confirmed that First Coal had taken reasonable steps to meet West Moberly’s concerns but held that the Crown’s consultation was not “meaningful in the circumstances”.  It had failed to put in place an active plan for the protection of the herd.   The judge did not quash the amended permits but stayed their issuance for a period of 90 days to allow the Crown, in consultation with West Moberly, to put an active protection plan in place.   On June 20, 2010 (9 months after the amendments were approved) First Coal announced that BC and the West Moberly Nation had developed a program to preserve the herd which finally allowed First Coal to proceed.

On November 2, 2010, Federal Environment Minister Jim Prentice rejected Taseko Mines Ltd’s proposed Prosperity Mine, near Williams Lake, BC.  Taseko had committed approximately $110 million over 17-years to the project which the Province had approved despite the anticipated damage to fish habitat in the area.  BC unsuccessfully urged the Federal government to do the same.  In contrast, on the same day, the Mr. Prentice approved the smaller Mount Milligan gold and copper mine proposed by Thompson Creek Metals Co., near Prince George, BC.

Mr. Prentice described a “highly consultative and a collaborative approach” used by the Mount Milligan mine while BC NDP mining critic John Horgan described the two mining proposals as a study in contrasts:   Thompson Creek worked with environmental groups, locals and the First Nations while Taseko simply obtained provincial approval.

The Courts and government continue to adapt and clarify the scope of the consultation duty.  What is clear is that the duty requires proactive, interest-based dialogue.  It affects plans and strategies for mining companies and when meaningfully implemented, will not only stimulate development but will create long-lasting viable relationships amongst all stake-holders from industry to First Nations groups to government.

Comments or questions?  Ask Solvit’s people:

Neil Hain, Pat Poyner, David Yule

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