2021 BCSC 1989
In a November 12, 2021 decision, the Honourable Mr. Justice Gomery of the Supreme Court of British Columbia determined that a decision by the British Columbia Inspector of Mines (the “Inspector”) to issue an amended permit to increase production in the McAbee Quarry (the “Quarry”) was unreasonable and failed to adequately discharge the honour of the Crown regarding the consultation process with the Stk’emlupsemc te Secwepemc Nation (“SSN“).
The Quarry land, located near Thompson River, BC, is owned and operated by the Canadian National Railway Company (“CNR”) for the purposes of ballast mining and railway maintenance, and is part of the territory over which SSN claims Aboriginal rights and title. In 2019, the Inspector issued the amended permit under the Mines Act approving CNR’s request to expand the Quarry lands, and increase its ballast extraction rate for 25%, but had no requirement for progressive reclamation and only maintained the original $20,000 fixed security requirement despite an estimated total of $27 million in reclamation costs by inspectors in 2017. Subsequently, SSN sought judicial review of the decision to have the amended permit quashed.
Upon review, the Court found that the Inspector failed, without justification, to require progressive reclamation for the Quarry, and that its decision to require only $20,000 of security for an estimated $27 million reclamation was unreasonable. The Court further declared that the Inspector ultimately failed to adequately and meaningfully consult with the SSN as required by law in issuing the amended permit, and ordered the Chief Inspector or his delegate to consult with SSN in connection with the issuance of the Amended Permit as well as making provision for progressive reclamation.
Sarah Hansen, Megan Young and Shawnee Monchalin (Environmental, Aboriginal) represented SSN in the proceedings.
For more details on the case decision and its impact in the mining and aboriginal industries, click The importance of consultation with First Nations, progressive reclamation and increased reclamation security for amended permits in the mining industry.