Decision Date: May 9, 2008

Panel: Alan Andison, Robert Cameron, Cindy Derkaz

Keywords:  Environmental Management Act – s. 16(1); effluent; mine tailings; water quality; copper; cadmium; aboriginal fishing rights; aboriginal title; consultation; amended permit; Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.R. 511

The Xats’ull First Nation (“Xats’ull”) appealed the amended permit issued to Gibraltar Mines Ltd. (“Gibraltar”) by the Ministry of Environment.  Gibraltar already held a permit authorizing the discharge of contaminants to the ground at its mine site.  The amendments to its permit allow Gibraltar to discharge certain contaminants from a tailings pond at its mine site into the Fraser River near Marguerite, BC.

Gibraltar’s mine produces copper-molybdenum ore.  Tailings consist of water, chemicals and suspended solids that are a by-product of the process used to remove the copper and molybdenum from the ore.  The tailings from Gibraltar’s mine are currently contained in a tailings pond which has limited capacity.  Gibraltar sought the amendments at issue in the appeal in response to this capacity issue.  It asked for, and was granted by the Ministry, authorization to discharge certain contaminants from the mine site to the Fraser River.

The Xats’ull’s Soda Creek reserve is adjacent to the Fraser River, approximately 25 kilometres downstream from the proposed point of discharge.  The Xats’ull claim a traditional territory that includes a section of the Fraser River extending northward, from a point that is a few kilometres south of the Soda Creek reserve, to a point that is a few kilometres north of the proposed point of discharge.  They also claim aboriginal rights to fish for salmon and sturgeon in that section of the river.

In the appeal, the Xats’ull submitted that the amended permit failed to protect the environment.  In particular, the Xats’ull submitted that the authorized discharge, which contains copper and cadmium, would have a negative impact on sturgeon and salmon.  They further submitted that their aboriginal fishing rights and title would be adversely affected by the amended permit, and that the Ministry failed to adequately consult with them before issuing the amended permit.

The Board considered two main issues: (1) whether the amendments would protect the environment in accordance with section 16(1) of the Act; and (2) whether the Ministry fulfilled its duty to consult with the Xats’ull before issuing the amended permit.  In deciding the second issue, the Board considered the test set out in Haida Nation v. British Columbia (Minister of Forests), [2004] S.C.R. 511.

The Board issued a majority decision and a minority decision.  The majority and the minority agreed on the findings in first issue, but they disagreed on some of the findings in the second issue.

On the first issue, the Board found that the background concentrations of copper and cadmium in the Fraser River already exceed the water quality guidelines for aquatic life, and that adding more copper and cadmium to the river would worsen water quality.  The Board found that there was limited evidence that the discharge would have a negative impact on salmon, but there was evidence that it could have an adverse impact on sturgeon, which are a threatened species, are low in numbers, and are more susceptible than salmon to those contaminants.  The Board found that, based on the existing state of water quality in the river and the sturgeon population, caution should be exercised before the authorizing the discharge of any additional contaminants.  The Board also found that: the computer modelling used to predict the diffusion of the discharge may be unreliable; the configuration of the diffuser was uncertain; the permit amendments that were intended to ensure adequate dilution during periods of low water flow in the river may not be effective; and the amended monitoring requirements may not be adequate.

On the second issue, the Board found that the Ministry had a duty to consult with the Xats’ull regarding the application to amend the permit.  Regarding the scope of the duty to consult, the Board considered: (1) the strength of the Xats’ull’s claims of aboriginal rights and title; and, (2) the seriousness of the potential impacts of the discharge on the aboriginal rights asserted by the Xats’ull.

Regarding the strength of the Xats’ull’s claims, the Board found that the Xats’ull have a prima facie case for aboriginal title to some of the traditional territory that they claim.  Specifically, the Board concluded that their claim of aboriginal title in areas that do not overlap with other First Nations’ claims is supported by a good prima facie case, but their claim of aboriginal title is weaker in the areas that overlap with other First Nations, and in particular, the area in or about the point of discharge.  The Board further found that the Xats’ull have a strong prima facie case for their claims of aboriginal rights to harvest salmon and sturgeon in the area around Soda Creek Canyon, and a good prima facie case for their claims of aboriginal rights fishing rights in and about the point of discharge.

Regarding the seriousness of the potential impacts on the Xats’ull’s asserted aboriginal rights, the Board concluded that their right to fish for salmon would not be significantly affected by the discharge, because the discharge would have a limited impact on salmon.  The Board found that the discharge could have an impact on the Xats’ull’s right to fish for sturgeon, because sturgeon travel many kilometres, are more susceptible than salmon to the potential negative effects of copper and cadmium, and are already in limited supply.  The Board held that although the Xats’ull have been unable to fish for sturgeon for several decades due to scarcity and conservation concerns, their right to fish for sturgeon still exists and could be exercised if sturgeon recover to a level where fishing is permitted.  However, the Board found that there was no evidence that sturgeon was a staple in the Xats’ull’s traditional diet or that sturgeon was a significant item of trade.  Thus, the Board concluded that there would be a modest impact on the Xats’ull’s right to fish for sturgeon.

With respect to aboriginal title, the Board found that the seriousness of the potential impact of the discharge on the Xats’ull’s claim of title was low.  In the area where they have a good prima facie case for aboriginal title, the potential effects of the discharge would be negligible or non-existent, due to the level of dilution and mixing that will have occurred by the time the river passes through Soda Creek Canyon.  In the area near the point of discharge, the claim to title was weaker, and the evidence of any harmful impact to that title was weak.

Based on those considerations, the Board found that the level of consultation regarding the right to fish in general, and for sturgeon in particular, was in the middle of the spectrum, and the level of consultation with respect to aboriginal title was at the low end of the spectrum.

Regarding whether the Crown met its duty to consult with the Xats’ull, the majority found that the steps taken by Ministry met the moderate to middle level of consultation that was required in this case.  The majority held that the Crown engaged in meaningful consultation with the Xats’ull, and provided reasonable accommodations in response to their concerns.  Therefore, the majority dismissed that part of the appeal.  However, the majority concluded that, if the Ministry makes further changes to the amended permit arising from the Board’s directions, he must continue to consult with the Xats’ull in respect of those further changes.

The minority found that the Ministry did not meet the middle level of consultation that was required.  The minority held that Gibraltar and the Ministry were receptive to the Xats’ull, made themselves available to meet with the Xats’ull and to discuss the proposed discharge, and acted in good faith in their interactions with the Xats’ull.  However, the minority found that the Ministry and Gibraltar provided the Xats’ull with erroneous information on a material issue.  The minority also found that the Ministry failed to adequately inform itself of the nature of the aboriginal interests claimed, failed to make clear and reasoned assessments of the soundness of those claims and of the likelihood of an infringement of the Xats’ull’s aboriginal interests, and failed to make adequate accommodation of those interests.  The minority would have allowed the appeal on this issue and sent the matter back to the Ministry to carry out proper consultation.

In conclusion, the Board found that more information and consideration was required before one could reasonably conclude that the amendments to the permit would adequately protect the environment, as required under section 16(1) of the Act.  On that basis, the Board sent the matter back to the decision-maker with a number of directions.  Further, the majority ordered that the authorization to discharge is suspended until the Ministry carries out a further review of the application to amend the permit, in accordance with the Board’s directions.

Accordingly, the majority allowed the appeal, in part.  The minority would have allowed the appeal.