In March of this year, the West Moberly First Nations ("West Moberly"), a Treaty 8 First Nation, successfully stalled work by First Coal Corporation ("First Coal") on a project in the Peace River coal field near Chetwynd, B.C., until a plan to protect and augment the dwindling Burnt Pine caribou herd could be introduced.
West Moberly brought judicial review proceedings against British Columbia and First Coal Corporation claiming that the Crown had failed to adequately consult with or accommodate West Moberly's right to hunt under Treaty 8 before Crown decision-makers authorized two permit amendments and a licence to cut timber in favour of First Coal.
Both the Crown and First Coal engaged in consultation with West Moberly, but no agreement was reached on how to deal with the potential impact of the exploration work on the Burnt Pine caribou herd. In the Crown's view, the Burnt Pine herd was one of nine caribou herds in the area, and represented only a very small portion of the total population of caribou available to meet West Moberly's hunting needs. In West Moberly's view, because the Burnt Pine herd had only eleven members left it was not sufficient to mitigate impacts, rather, a plan to actively rehabilitate the herd was necessary prior to any further mining development in the area.
On this basis, West Moberly challenged three decisions issued by three separate Crown decision-makers enabling First Coal to engage in advanced exploration work on the site.
The Supreme Court of BC sided with West Moberly. Mr. Justice Williamson held that while the Crown had consulted with West Moberly, and had engaged in or approved measures that would likely mitigate the environmental impact of First Coal's operations, these measures had not been undertaken in response to, and therefore could not accommodate, West Moberly's concern about the violation of its treaty right to hunt caribou. The Court dismissed the Crown's argument that West Moberly did not have a right to hunt caribou from one specific area within the larger treaty territory. Citing the reasoning of the Supreme Court of Canada in the 2005 case of Mikisew Cree First Nation, Mr. Justice Williamson held that it was "not an accommodation to say 'hunt elsewhere.'" The Court also criticized Crown communications to West Moberly suggesting that it was beyond the scope of the present consultation to deal with the cumulative impacts of First Coal's project on West Moberly's traditional territory. Mr. Justice Williamson held that "the honour of the Crown is not satisfied if the Crown delegates its responsibilities to officials who respond to First Nations' concerns by saying the necessary assessment of proposed 'taking up' of areas subject to treaty rights is beyond the scope of their authority."
The Court ordered a 90-day stay during which the Crown was ordered to consult with West Moberly to effect a "reasonable, active plan for the protection and augmentation of the Burnt Pine herd." The Crown has appealed Mr. Justice Williamson's decision, although the appeal is in abeyance while the parties attempt to devise a rehabilitation plan for the caribou satisfactory to all.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.