Photo credit: Doane Gregory
The Eskay Creek Mine (the “Mine”) is a mining operation located in northern British Columbia. During its operation between 1995 and 2008, waste rock and tailings from the Mine were discharged at a storage facility located at Albino Lake. In 2020, Skeena Resources Ltd. (“Skeena”) became the new operator of the Mine and assumed responsibility for monitoring the waste rock and tailings stored at the storage facility. Both the Mine and the storage facility are located on the traditional territory of the Tahltan Nation.
In 2018, Richard Mill acquired a mineral claim over the lands on which the storage facility is located on Albino Lake. Seeking to settle a dispute over who held rights to explore and develop the waste rock and tailings stored at the storage facility under subsection 13(1) of the Mineral Tenures Act (the “MTA”), Mr. Mill applied to the Chief Gold Commissioner (the “Commissioner”) for dispute resolution. The Commissioner decided in favour of Mr. Mill, finding that the waste rock and tailings are part of Mr. Mill’s mineral claim and did not comprise part of the property acquired by Skeena. Skeena appealed the decision to the B.C. Supreme Court.
Photo credit: Doane Gregory
The Issue and the Parties’ Positions
During the appeal proceeding, the Tahltan Central Government (the “TCG”) applied to the court for intervenor status to participate in the appeal. TCG argued it’s justification for intervenor status on two separate grounds.
First, the TCG claimed that concerns of fairness require its participation since the ultimate outcome of the appeal would directly impact the Tahltan Nation. The TCG asserted that the outcome of the appeal decision would directly impact the Aboriginal rights and title of the Tahltan Nation as well as impact the Tahltan’s decision-making authority under the Nation’s section 7 agreement with British Columbia under the Declaration of the Rights of Indigenous Peoples Act (“DRIPA”). The TCG further argued that the appeal would address whether the Commissioner exercised his authority under the MTA in accordance with DRIPA, and the outcome of this issue would directly impact and define the First Nation’s DRIPA rights.
The second ground upon which the TCG relied to justify its intervention was that the issues on appeal were matters of public interest on which the TCG had a unique perspective that would assist the court in rendering a decision. The TCG asserted that the issue of separating Mr. Mill’s right to explore and develop waste rock and tailings from Skeena’s obligation to monitor them, as well as the issue of how reconciliation and DRIPA should inform the interpretation of the MTA, were matters of public interest. Consequently, the TCG argued, the unique perspective of the TCG would assist the court in its deliberation on these matters.
Mr. Mill challenged TCG’s participation arguing that since the appeal was a matter of rights to waste rock and tailings between two private entities, the TCG did not have any direct interest in the outcome of the appeal outside of assertion of an Aboriginal interest, which later consultation processes were designed to address. Mr. Mill also asserted that there is no matter of public interest on which the TCG would provide a unique perspective. Further, Mr. Mill argued that the Commissioner’s decisions did not separate the rights to waste rock and tailings from the obligation to monitor them.
The court held that the issue of separating ownership rights from environmental monitoring obligations was a matter of public interest on which the TCG would provide a unique perspective that would assist the court in deciding the issue. For that reason, the court granted intervenor status to the TCG to provide limited submissions on this issue.
The court found that there wasn’t enough evidence to determine how a decision as to who held rights to waste rock and tailings as between Mr. Mill and Skeena would directly impact the Aboriginal rights or title of Tahltan. While the court noted that the TCG has proven its deep interest and involvement in the stewardship of Tahltan traditional territory, the court could not determine the Tahltan’s stewardship rights stood to be affected by the question of whether Mr. Mill or Skeena has the right to develop the waste rock and tailings. The court further found there to be insufficient evidence to demonstrate how an alternative interpretation of the MTA by the Commissioner, one consistent with DRIPA, would have impacted the rights of Tahltan and the TCG during the Commissioner’s exercise of his authority. The court recognized that the appeal would determine whether and to what extent the waste rock and tailings are part of the future operation of the Mine, and that this will impact Tahltan’s DRIPA agreement with the province pertaining to the Mine. However, in the court’s view, this impact was not sufficient to constitute a “direct impact on its rights or liabilities,” so as to give rise to a right to intervenor status based on a direct interest.
The court found that the appeal engaged matters of public interest to which the TCG provided a unique perspective. The court found both the issue of separating the rights to waste rock and tailings from the obligation to monitor them, and the issue of the role of reconciliation and DRIPA in the interpretation of the MTA were matters of public importance. However, the court ultimately found the latter issue to be so vague as to risk expanding the scope of the appeal beyond what the parties had intended. As a result, the court limited the TCG to providing submissions on the issue of separating the rights to waste rock and tailings from the obligation to monitor them.
As of the time of writing, Skeena’s appeal has yet to be decided.
Implications of the Decision
This decision demonstrates the importance of prospective intervenors explaining in specific, concrete terms how an issue stands to affect them and what they wish to say to the court. It is not enough to assert that a decision stands to affect a First Nation. The First Nation must explain in concrete terms how it stands to be affected. Similarly, it is not enough to seek to make submissions on the role of reconciliation or DRIPA on a legal issue before the court. A First Nation seeking to make such submissions must explain how those principles apply to the issue before the court.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.