In the May 2011 Bennett Jones Update, "Continued Challenges with Respect to the Scope of the Duty to Consult and Accommodate First Nations," we discussed the British Columbia Court of Appeal's decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, noting that the decision created potential uncertainty around the role cumulative effects play in the duty to consult.

The West Moberly First Nations sought leave to appeal the Court of Appeal's decision to the Supreme Court of Canada, and on Thursday, February 24, 2012, the Supreme Court of Canada dismissed their leave application, thus declining the opportunity to clarify the scope of the duty to consult and accommodate First Nations, and in particular, to comment on whether the duty to consult includes a consideration of the cumulative effects of "past wrongs" and the impact of future developments.

Background

West Moberly involved decisions made by officials in the British Columbia Ministry of Energy, Mines and Petroleum Resources (MEMPR), which amended existing permits to allow First Coal Corporation to obtain a 50,000 tonne bulk sample of coal, and to engage in a 173 drill hole, five trench Advanced Exploration Program.

The evidence before the Court was that since about the 1970s, the West Moberly First Nation (WMFN) elders had imposed a ban on their people's hunting of caribou from the Burnt Pine herd due to diminishing numbers of the herd. The program would take place within the WMFN's preferred traditional hunting ground, and specifically, would affect important winter caribou habitat. In this case, the WMFN took the position that First Coal's application should be rejected, their proposed mining activities relocated to another area where the habitat for the caribou would not be affected, and a plan should be put in place for the recovery of the Burnt Pine herd.

The learned chambers judge held that the treaty protected right at issue was the right to hunt the Burnt Pine caribou herd, and that the consultation provided was unreasonable. He also held that the Crown had failed to accommodate reasonably by not putting in place an active plan for the protection and rehabilitation of the caribou herd, and provided a direction for specific accommodation reflecting such a plan. The province appealed.

The Scope of the Duty to Consult

Among the issues before the B.C. Court of Appeal was whether the duty to consult includes consideration of past wrongs, cumulative effects, and future development on the WMFN's right to hunt caribou, specifically from the Burnt Pine herd. The majority, consisting of the Chief Justice and Justice Hinkson, adopted a broad interpretation of the duty to consult, holding that the duty must include a consideration of "cumulative effects" extending beyond the consequences of the permits at issue.

In her dissenting decision, Justice Garson held that the duty to consult encompassed the potential adverse impact of the permits themselves, not the broader impact of a full mining operation, and should focus on the right to hunt generally, not the Burnt Pine caribou herd specifically. The scope and extent of the Crown's consultation obligations did not include implementing a recovery plan that did not emanate from, or was not causally related to, the permits sought.

The Scope of the Duty to Accommodate

On this issue, the majority consisted of Justice Hinkson and Justice Garson. Again, at issue was whether accommodation should be interpreted broadly to include a remedy for the cumulative effects of past wrongs. Justice Hinkson concluded that the potential adverse effect on an Aboriginal right must be causally linked to current Crown conduct, and not past events. Thus, for the duty to consult to be triggered, the Crown's current proposed conduct must itself be causally linked to the potential adverse consequence affecting the Aboriginal right, and the duty to accommodate did not oblige the Crown to accommodate the effects of prior impacts upon treaty rights.

Justice Garson essentially agreed with Justice Hinkson's approach to the duty to accommodate, finding that the chambers judge erred in construing the Crown's duty to consult and accommodate so broadly as to include a requirement to consider past wrongs, cumulative effects and future development, because the near expiration of the herd could not have been caused by the prospective granting of the permits at issue. The issue of cumulative effects and future development is best left to the province to address outside of the permits at issue in this case.

Comment

As noted in the May 2011 update, the Court of Appeal's divided decision leaves some uncertainty with respect to the scope of the duty to consult and accommodate as it relates to past wrongs, cumulative effects and future development. However, based on the approach favoured by the B.C. Court of Appeal in West Moberly, the law provides that consultation must include a consideration of cumulative effects extending beyond the consequences of the permits at issue, but that accommodation should relate solely to the potential impacts flowing from the project or application at issue. While past effects may be relevant, there must be a causative link between the proposed conduct and the alleged impacts in question.