West Moberly First Nations v. British Columbia (Chief Inspector of Mines)

Written By Deirdre A. Sheehan

The British Columbia Supreme Court has suspended an exploration permit and license to cut issued to First Coal Corporation on the basis that Crown decision-makers had not adequately consulted with and accommodated the concerns of the West Moberly First Nations regarding impacts of First Coal's operations to the Burnt Pine caribou herd.

West Moberly brought an application for judicial review to quash three decisions of the British Columbia government to issue amendments to First Coal's permits pursuant to the Mines Act and a license to cut under the Forest Act. The permit amendments related to First Coal's exploration programs and involved (1) obtaining a 50,000 ton bulk sampling of coal and (2) undertaking a 173 drill hole, five trench advanced exploration program. The license to cut permitted First Coal to cut and clear up to 41 hectares of land to facilitate the advanced exploration program.

An adherent to Treaty 8, West Moberly contended that the issuance of the permits and license to cut adversely impact their hunting rights guaranteed by Treaty 8. Specifically, West Moberly contended that the population of caribou in the area, the Burnt Pine herd, had been decimated and was in danger of being extirpated and that the Crown, in issuing the permit amendments and license to cut, failed to consult adequately and meaningfully with West Moberly concerning their Treaty 8 hunting rights. Further, West Moberly argued that the Crown failed to accommodate reasonably West Moberly's concerns regarding the Burnt Pine herd, which is part of the southern mountain population of caribou listed as threatened pursuant to the Species At Risk Act and has a population of only 11. The Court held that the treaty right at issue was the right of the West Moberly to hunt caribou in their traditional seasonal hunting round in the territory affected by the First Coal operation.

Both First Coal and the Crown argued that meaningful consultation and accommodation of the West Moberly's concerns had occurred. First Coal emphasized that although it owed no legal duty of consultation to West Moberly, First Coal had in fact undertaken considerable efforts to address West Moberly's concerns, which included:

• Retaining consultants;
• Providing funds to assist in monitoring;
• Retaining a wildlife biologist to develop a plan to restore altered landscapes and to monitor the caribou population;
• Closing a road that interfered significantly with the Burnt Pine herd;Participating in meetings with provincial wildlife biologists and First Nation groups to discuss the caribou population;
• Informing its employees and visitors to the area about procedures and practices that would minimize impact to caribou; and
• Developing a Caribou Mitigation and Monitoring Plan.

The Court agreed that First Coal had taken reasonable steps to meet West Moberly's concerns, but that the Crown had not engaged in meaningful consultation. One reason significant to the Court's decision in this regard was the fact that the officials issuing the amendment permits took the position that the cumulative impacts of First Coal's project upon West Moberly's traditional territory was “beyond the scope of this project to fully assess.” The Court stated that the honour of the Crown was not fulfilled if the Crown delegates its responsibility to officials who respond to First Nations concerns by saying the necessary assessment of the proposed taking-up of areas subject to treaty rights is beyond the scope of their authority.

The Court also took issue with the Crown's accommodation of West Moberly's concerns, holding that the Crown's reliance on the implementation of First Coal's Caribou Mitigation and Monitoring Plan was insufficient and unreasonable as it did not provide for a recovery plan for the caribou. The Court also held that other accommodation measures (the road closure, using a less destructive method of mining, and reducing the sampling program from 100,000 tons to 50,000 tons) could not be regarded as accommodation or a response to West Moberly's concerns as these measures were not implemented as part of a concerted rehabilitative plan for the threatened caribou herd and were not undertaken specifically in response to West Moberly's concerns.

The Court concluded that the rationale for issuing the permits and license to cut did not manifest reasonable accommodation of West Moberly's prime concern about the violation of its treaty right to hunt caribou. Therefore, the Court issued a stay of the advanced exploration program (as the bulk sampling program had already been completed) and a suspension of the license to cut for a period of 90 days in order to reach a proper accommodation of West Moberly's concerns with respect to the Burnt Pine herd. The Court specifically held that this accommodation should be the expeditious implementation of a reasonable, active program for the protection and augmentation of the Burnt Pine herd.