Introduction

On May 25, 2011, the British Columbia Court of Appeal rendered its decision regarding West Moberly First Nations v. B.C. (Chief Inspector of Mines).1

The West Moberly First Nations ("West Moberly") sought to quash three decisions regarding an advanced exploration program proposed by First Coal Corporation ("First Coal") on the basis of inadequate consultation and accommodation of their Treaty 8 hunting rights. Williamson J. held that the provincial Crown did not meaningfully consult with West Moberly and that the accommodation put in place was inadequate in the circumstances.2

The majority of the Court of Appeal dismissed the Crown’s appeal, agreeing that the Crown’s consultation had not been meaningful, and therefore not reasonable, but setting aside the accommodation ordered by Williamson J. to allow for further consultation.

Background

The West Moberly application for judicial review concerned three decisions of the Crown:

  • September 1, 2009 decision of the Chief Inspector of Mines to amend the existing permit to allow First Coal to obtain a 50,000 ton bulk sample of coal;
  • September 14, 2009 decision of the Inspector of Mines to issue an amendment to First Coal’s existing permit to approve a 173 drill hole, 5 trench advanced program on the same land; and
  • October 8, 2009 decision of the Ministry of Forests and Range to permit First Coal to cut and clear up to 41 hectares of land to facilitate the advanced exploration program (together, the "Decisions").

West Moberly claimed that the Crown failed to consult adequately and meaningfully with them regarding their right to hunt set out in Treaty 8 and that the Crown failed to reasonably accommodate their rights when the Decisions were issued. West Moberly submitted that the Decisions should be declared invalid and set aside. One of their primary concerns regarding the Decisions would be their effect on a specific herd of caribou known as the Burnt Pine herd which, over time, had been reduced to 11 caribou in total.

BC Supreme Court Decision

Williamson J. held that the Crown "failed to consult adequately and meaningfully" and "failed to accommodate reasonably" the Petitioners’ hunting rights provided by Treaty 8.3 Although the Crown consulted with the West Moberly, such consultation was not meaningful in the circumstances. The Court based this conclusion on a number of factors:

  • the Crown was "extremely slow" to provide West Moberly with its initial assessment of the potential adverse effects of the project generally on West Moberly’s treaty rights – while consultation started in 2005, it was not until August 2009 that a substantial assessment by the Crown was released;4
  • the Crown responded to West Moberly’s concerns about potential extirpation of the Burnt Pine caribou herd with something approaching "standard form referral letters;"5 and
  • despite the Crown’s proposed Caribou Mitigation and Monitoring Plan (the "CMMP"), the Crown’s "failure to put into place an active plan for protection and rehabilitation of the Burnt Pine herd" amounted to a failure to accommodate reasonably.6  

This resulted in Williamson J. concluding:

"…a balancing of the treaty rights of Native peoples with the rights of the public generally, including the development of resources for the benefit of the community as a whole, is not achieved if caribou herds in the affected territories are extirpated".7

Williamson J. held that quashing the Decisions would not be a "proper balancing of the rights of the petitioners with other First Nations and the public, including First Coal".8 The appropriate remedy would be to stay the effect of the amendment to the advanced exploration program and to suspend the effect of the licence to cut for 90 days to allow the parties to expeditiously put into place a "reasonable, active plan for the protection and augmentation of the Burnt Pine herd".9

BC Court of Appeal Decision

The Appeal decision concerned only the first two Decisions noted above. On appeal, the Crown argued that Williamson J. erred in holding that the Crown’s consultation and accommodation had not been meaningful and was unreasonable. Specifically, the Crown argued that Williamson J. erred in interpreting West Moberly’s Treaty 8 right to hunt as a "species specific right", and in holding that West Moberly’s interests could only be accommodated in one specific way.10 The Crown argued further that Williamson J. erred in holding the Crown officials to an unreasonable standard regarding the scope of their delegated authority, as they were not authorized to address all Aboriginal issues and concerns.11

In support of the Crown’s appeal, First Coal argued that Williamson J. erred in holding that the scope of the Crown’s duty to consult included consideration of the cumulative effect of "past wrongs and potential future developments", rather than focussing on the potential impact of the permits at issue.12 First Coal relied upon the decision of the Supreme Court of Canada (the "SCC") in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 ("Rio Tinto"), pronounced after Williamson J.’s decision was released.13 In Rio Tinto, the SCC held that the Crown’s duty to consult is confined "to adverse impacts flowing from the specific Crown proposal at issue — not to larger adverse impacts of the project of which it is a part" and that "[t]he subject of the consultation is the impact on the claimed rights of the current decision under consideration".14 Prior and continuing breaches trigger a duty to consult only if the current decision could cause a novel adverse impact on a present claim or existing right.15 First Coal also argued that Williamson J. erred in law by rejecting First Coal’s CMMP as a reasonable form of accommodation.16

Reasons of Finch C.J.B.C.

Chief Justice Finch held that Williamson J. did not err in considering the specific location and species of the West Moberly’s hunting practices, finding that the chambers judge had not interpreted the Treaty 8 right to hunt as a species specific right, but rather as including the right to hunt caribou.17 He held further that the Crown decision-makers were not prevented by the scope of their delegated authority "from consulting whatever resources were required in order to make a properly informed decision", including Treaty 8, and they did not properly do so.18

In considering whether Williamson J. erred in considering "past wrongs" and the cumulative effects that led to the depletion of the Burnt Pine caribou herd, the Chief Justice held that Rio Tinto was distinguishable "because in Rio Tinto there was a finding that the sale of excess power would have no adverse effect on the Nechako River fishery" whereas in this case, there was a link between the adverse impacts under review and past wrongs:19

I do not understand Rio Tinto to be authority for saying that when the "current decision under consideration" will have an adverse impact on a First Nations right, as in this case, that what has gone before is irrelevant. Here, the exploration and sampling projects will have an adverse impact on the petitioners’ treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt.20 [emphasis in original]

The Chief Justice held that Williamson J. committed no error in finding that the Crown failed to consider the impact of a full mining operation in the area and thereby failed to provide meaningful consultation.21 In order for consultation to have been reasonable, the Crown would have had to explain to West Moberly that their position (i.e. that permits should be rejected and the project relocated away from the caribou habitat) had been "fully considered" and that there were "persuasive reasons why West Moberly’s suggestions were unnecessary, impractical or otherwise unreasonable. Consultation could not have been meaningful without a "reasoned basis" for rejecting West Moberly’s position.22 The Court found that the starting point for the Crown was that the exploration programs should proceed and the CMMP and other measures were simply proposed to minimize or mitigate adverse effects, without considering that West Moberly’s position of not allowing the exploration to occur might be preferred.23

The Chief Justice found this approach to be inconsistent with West Moberly’s Treaty 8 rights, noting that the concept of mining at the time of the treaty-making did not include the possibility of destruction to an important habitat that a modern mining operation would cause:24

A consultation that proceeds on a misunderstanding of the Treaty, or a mischaracterization of the rights that the Treaty protects, is a consultation based on an error of law, and cannot therefore be considered reasonable.25

The Chief Justice stated that his reasons for finding that consultation was not meaningful differed from those of Williamson J.26 While Williamson J.’s reasons were also correct, the Chief Justice held that the underlying reason for lack of meaningful consultation was the Crown’s "failure to understand or appreciate the basis of the petitioners’ objection, grounded in a constitutionally protected treaty right".27

With respect to accommodation, the Chief Justice affirmed that the Crown failed to accommodate reasonably West Moberly’s hunting rights.28 However, he held that it was not necessary to determine whether Williamson J. erred in declaring a specific form of accommodation (i.e. implementation of a plan to protect and augment the Burnt Pine herd). He observed that sections 5 and 6 of the Judicial Review Procedure Act appeared to grant a sufficiently broad discretion to make such an order, however courts have been reluctant to do so in order "not to impair further consultation".29 The Chief Justice held that the proper remedy was to stay the implementation of the permits, set aside the accommodation ordered by Williamson J. and remit the matter for further consultation, having regard to the proper scope of consultation set out in his reasons.30

Concurring reasons of Hinkson J.A.

Hinkson J. A. agreed with the conclusions of the Chief Justice but differed in his reasons for setting aside the accommodation ordered by Williamson J.31 He agreed that including an historic perspective recognizing the depletion of the Burnt Pine herd was a proper consideration for consultation in determining the impact of the Decisions, however, in his view the plan to rehabilitate and increase the Burnt Pine herd was not appropriate accommodation as it did not relate to an adverse impact of the Decisions:32

…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. It follows that where this test is met, the duty to accommodate should only be concerned with addressing the potential adverse affects [sic] of the current proposed Crown conduct, and not with remedying harm caused by past events.33

Hinkson J.A. noted that the Burnt Pine herd "has been so decimated that West Moberly have refrained from hunting its members for some 40 years", whereas First Coal’s project had only been pursued since 2005.34 Therefore, Hinkson J.A. was of the view that accommodation "with respect to the prior decimation of the Burnt Pine caribou herd from events prior to the First Coal project" was not required.35 On this basis, he would set aside Williamson’s J.’s order to put in place a reasonable, active plan to protect the Burnt Pine herd, on the basis that it went beyond the scope of the duty of reasonable accommodation.36

Hinkson J. concluded that Williamson J. erred in law "by conflating his consideration of the Crown’s duty to consult with the West Moberly with what he considered to be a reasonable accommodation of the rights of the West Moberly."37 Although consultation on the specific impacts of the Decisions could properly include an historic perspective that recognized the depletion of the Burnt Pine herd, rehabilitation of the herd was not an appropriate accommodation for First Coal’s project.38

Hinkson J. qualified his reasons by noting, as the SCC had in Rio Tinto at para. 49, that past harms are not without remedy, but "those harms are not properly addressed by way of consultation and accommodation undertaken in connection with current Crown conduct."39

Dissenting reasons of Garson J.A.

Madam Justice Garson was of the view that in the circumstances, the Crown had consulted adequately with West Moberly and that Williamson J. erred by interpreting the Crown’s duty to consult and accommodate too broadly. Garson J.A. concluded that Williamson J. erred in characterizing the treaty right to hunt as a specific right to hunt the Burnt Pine herd, rather than as a more general right to hunt, which led him to conclude that the impact of the permits was significant and required more in the way of accommodation.40 Garson J.A. thought that the Crown had "properly considered the impact of First Coal’s activities on the Burnt Pine caribou herd within the broader context of West Moberly’s Treaty 8 hunting rights".41

As with the Chief Justice, Garson J.A. found that Rio Tinto was distinguishable. In Rio Tinto, the sale of excess power at issue would have no adverse effect on the First Nation’s fishery, whereas here there was a link between the adverse impacts of First Coal’s project and "past wrongs". However, Garson J.A. noted that Rio Tinto still applied for the proposition that "there must be a causative relationship between the proposed government conduct and the alleged threat to the species from that conduct".42 In this case, "it could not be ignored that this caribou herd was fragile and vulnerable to any further incursions by development in its habitat", nor could the result of past incursions into caribou habitat be ignored.43 However, this consideration is only relevant in assessing the impact of the specific decision or action which has triggered the current consultation requirement. Garson J.A. felt that the Crown had reasonably proceeded with consultation on this basis, and that in accommodating West Moberly, the Crown did not implement a recovery plan "because the need for recovery did not emanate from, or was not causally related to, the permits sought".44

Discussion

This decision, among other recent decisions, raises the question of the proper role of courts in determining matters related to consultation and accommodation, including the deference afforded to Crown decision-makers. In the trial decision, the Court focused on the outcome of consultation in determining its overall reasonableness, appearing to substitute its own judgment on what the outcome of consultation and accommodation process ought to have been rather than considering whether such process was reasonable, as per the legal standard enunciated by the SCC. While the Court of Appeal is more cautious on this point, particularly with respect to prescribing a particular form of accommodation, the decision by the majority still appears to impose a standard which is higher than reasonableness. The minority reasons are particularly illustrative of this issue as Garson J.A. sets out in detail what appear to be extensive consultation efforts undertaken by both the Crown and First Coal with West Moberly in respect of the Decisions.45

Ultimately, the majority of the Court of Appeal finds that consultation was not reasonable for a number of reasons, including (i) that the Crown did not consider the impact of a full mining operation in the area of concern46 (which is not, on its face, consistent with Rio Tinto), (ii) that the Crown entered into consultation without a full understanding of what the treaty meant and mischaracterized the West Moberly’s treaty rights and that consultation could not therefore be reasonable (which, while arguably consistent with certain case law, does not appear to be consistent with the recent SCC decision in Beckman v. Little Salmon/Carmacks First Nation47 which involved similar circumstances but where consultation was nevertheless found to be reasonable), and (iii) that the Crown never considered the possibility that exploration should not proceed as asserted by West Moberly because it treated the West Moberly’s treaty rights as inferior to the Crown’s right to take up land for mining48 (which, given the pre-proof environment of the Crown’s duty to consult, appears to be inconsistent with the Crown’s entitlement to manage the resource as confirmed by the SCC in Haida Nation v. B.C.49).

The Court of Appeal’s application of the principles from Rio Tinto is also interesting with respect to "past wrongs". While the Court agreed with the principle that "past wrongs" including previous breaches of the duty to consult do not, on their own, trigger the duty to consult with respect to the Crown’s current conduct, each judge distinguished Rio Tinto on the facts. Chief Justice Finch found that in this case, a consideration of "past wrongs" and an analysis of the historical context was an appropriate part of consultation in order to understand the existing state of affairs and the effects of the current Crown conduct on West Moberly’s treaty right to hunt.50 Hinkson J.A. agreed with the Chief Justice that the historical context was essential to understanding the seriousness of the potential impacts on West Moberly’s treaty right to hunt.51 However, he also found that the duty to accommodate, as explained in Rio Tinto, did not oblige the Crown to remedy harm caused by past events. Therefore, Williamson J.’s order to rehabilitate the Burnt Pine herd had not been appropriate. Garson J.A. in dissent also agreed that "the result of past incursions into caribou habitat" and the fragility of the caribou herd could not be ignored.52 However, unlike the majority, she was of the view that the Crown had correctly taken those historical facts into consideration during consultation and had properly drawn the line at implementing a rehabilitation plan for the herd, as the need for rehabilitation was not causally linked with the permits sought.

In our view, a consideration of "past wrongs" is not inconsistent with Rio Tinto to the extent that an analysis of the historical context is necessary for understanding the existing state of affairs and assessing the potential impacts of the specific contemplated Crown conduct on a known or asserted Aboriginal or treaty right. However, the Crown’s duty to consult only extends to the adverse impacts of the current or specific Crown conduct and does not require the Crown to address such past wrongs in fulfilling its current obligations to an Aboriginal group in respect of a specific decision or action.