On December 12, 2023, the British Columbia Environmental Appeal Board ("EAB") released its decision in Tŝilhqot'in National Government v. Director, Environmental Management Act, 2023 BCEAB 37. This decision stems from a 2019 amendment to Gibraltar Mines Ltd.'s permit (the "Amendment") authorizing a temporary increase in the volume of effluent discharge.

The Tŝilhqot'in National Government ("TNG") appealed the Amendment on two grounds:

  • The Crown breached its constitutional duty to adequately consult and reasonably accommodate the Tŝilhqot'in Nation before issuing the Amended Permit
  • The Amended Permit was not adequately protective of human health and the environment, as required by section 16(1) of the Environmental Management Act.

The EAB dismissed the appeal on both grounds. The EAB found that: a) the Crown had fulfilled the duty to consult, and that it was not required to make further inquiry and engage in further consultation with respect to the principle of non-degradation that was raised at a late stage in the consultation process; and b) the Amendment was adequately protective of the environment when relevant factors were considered.

Background

The Amendment relates to a permit for a copper and molybdenum mine operated by Gibraltar Mines Ltd. ("Gibraltar") Gibraltar sought an amendment to its permit to allow for an increase in the volume of mine effluent discharge from the tailings storage facility into the Fraser River (also known as ʔElhdaqox). Water levels within the tailings storage facility at the mine had been increasing and there had been ongoing efforts to ensure that the volume of water did not pose a significant risk of uncontrolled discharge into the Fraser River.

On March 18, 2019, the Director issued the Amendment to increase the maximum volume of permitted effluent discharge by fifty percent for a three year period.

Prior to issuing the Amendment, the Director engaged in consultation with TNG. Consultation was undertaken on the basis of the provisions of the Stewardship Agreement between TNG and British Columbia. Comprehensive Terms of Reference were negotiated between TNG and the Director; these Terms of Reference provided a formal structure through which consultation was undertaken about TNG's Aboriginal rights and title.

The Decision

Ground 1: Consultation and Aboriginal Right to Self-Governance

TNG asserted that the Director failed to adequately consult and accommodate TNG with respect to the principle of non-degradation, which TNG asserted was a component of its Aboriginal right to self-determination. TNG submitted that the principle of non-degradation required that any water discharged by Gibraltar into the Fraser River must be of an equivalent or better quality as the water upstream of the discharge point.

The EAB found that the Crown engaged in extensive consultation with TNG, beginning in 2017, about the Amendment but did not separately consult with or attempt to accommodate TNG with respect to the principle of non-degradation as a component of TNG's asserted claims. Those consulting with TNG did not understand that the principle of non-degradation was presented by TNG as a component of an asserted Aboriginal right, distinct and separate from concerns about environmental impacts.

The EAB concluded that the reason the Director did not appreciate that the non-degradation principle was being asserted as a component of an Aboriginal right was because it was not framed in this manner explicitly until late in the process, on January 23, 2019. The EAB stated:

[225] The law is clear that [the] Director was required to consult with TNG on any Aboriginal right potentially impacted by the 2019 Amendment, and that he had to adopt a flexible approach and not to conclude consultation and rush to render a decision. The law is equally clear that TNG was required to put forward its assertion of non-degradation as a claimed Aboriginal right, with its supporting evidence, as early as possible in the consultation process.

In these circumstances, where clear articulation of the right was made late in the consultation process, the EAB found that the Director was not bound to make further inquiry nor engage in further consultation with TNG with respect to the principle of non-degradation as a component of TNG's Aboriginal rights. The Director acted reasonably and lawfully in bringing the consultation process to an end and rendering a decision.

After making this finding, the EAB noted that the principle of non-degradation emphasized by TNG would result in a binary choice for decision-makers:

  • accommodate the principle by denying applications with impacts on the environment; or
  • disregard the principle and authorize applications with acceptable but non-zero impacts on the environment.

The EAB found that any accommodation of the principle of non-degradation in these circumstances would have left the Director with one decision: refuse the application for the Amendment. The EAB noted, at para. 234, that the jurisprudence in Canada is that "Aboriginal groups do not have a veto over government decisions unless and until their Aboriginal rights are proven."

Ground 2: Protection of the Environment

The second ground of appeal asked whether the Director's decision to issue the Amendment adequately protected human health and the environment.

The EAB considered a significant volume of expert evidence presented by both TNG and the Director. Ultimately, the EAB concluded that the Director properly determined that the Amendment adequately protected the environment and human health. In reaching this conclusion, the EAB noted that the regime regarding applications for waste discharge permits (or applications to amend such permits) does not contemplate a zero-tolerance policy toward contamination of the environment.

The EAB agreed that it was appropriate for the Director to consider the context in which he was making the decision, including the potential risk of the tailings storage facility failing, finding:

[446] The 2019 Amendment must, then, be considered in this light. The risk to the receiving environment of the increase in effluent discharge must be weighed against the future risk of a TSF dam failure. The evidence in this appeal has demonstrated that the increase in effluent discharge resultant from the 2019 Amendment is protective of the environment. As this increased discharge does not negatively impact the environment, and addresses the environmental risk associated with increasing water impoundment at the Mine, the balance of weighed factors clearly supports the finding that the 2019 Amendment was appropriate in the context in which it was made. ...

Implications

This decision of the EAB provides two important takeaways:

  1. Consultation is a two-way street – it imposes obligations on: a) the Crown, to be flexible and not rush to render a decision; and b) on Aboriginal groups to provide information about asserted rights and title in a timely manner during the consultation process. The EAB was clear that the level of consultation that can be expected on an asserted right is impacted by when the Crown has knowledge of the right. In this case, the EAB took the view that the principle of non-degradation was articulated, and therefore understood, as an Aboriginal right late in the consultation process. This timing impacted the level of consultation that TNG could expect on the issue. The EAB's decision aligns with the current law of consultation in Canada. Impacts of legislation such as the BC Declaration on the Rights of Indigenous Peoples Act and the federal United Nations Declaration on the Rights of Indigenous Peoples Act on the law of consultation remain to be seen.
  2. Permitting does not occur in a vacuum. The context surrounding the permitting process necessarily informs whether a particular decision is protective of the environment and ought to be issued. In this case, that context included the prevention of other risks, namely the possibility of a tailings storage facility failure.

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