West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247
The B.C. Court of Appeal has upheld, in part, an order requiring further consultation and accommodation in relation to a proposed mining project in Treaty 8 territory. The order appealed from included a declaration that the Crown "failed to consult adequately and meaningfully and failed to accommodate reasonably [West Moberly's] hunting rights provided by Treaty No. 8 with respect to the [mining project]." The hunting rights in question related to a specific herd of caribou that has been decimated in modern times and whose habitat would potentially be threatened by the mining project in question.
The chambers judge who made the original order also directed the province to undertake an "active plan for the protection and augmentation of the Burnt Pine caribou herd."
On appeal, the majority of a divided Court stayed the mining permits and sent the parties back to undertake additional consultation, but held that the species-specific accommodation as ordered should be set aside (for different reasons, as explained below). Madam Justice Garson, in dissent, would have allowed the B.C. appeal because while "the outcome was not that which [West Moberly] desired ... it cannot be said that the outcome, given all the factors listed by the decision makers, was unreasonable." Madam Justice Garson cited various authorities to support her view that "It is not for a court on judicial review to mandate specific accommodation measures ... nor specific outcomes to the process." Therefore, in Madam Justice Garson's view, "the Crown [had] discharged its duty and ... the chambers judge erred in finding that consultation was inadequate and that a specific form of accommodation was required."
A. Is judicial review the appropriate procedure in which to allege, and remedy, the Crown’s failure to consult and accommodate?
The province argued that the evidentiary record and procedures undertaken were insufficient to rule on the scope of a treaty right. The Court rejected these arguments, citing the recent Supreme Court decision in Beckman v. Little Salmon/Carmacks First Nation,  3 S.C.R. 103, where it was held that judicial review is "perfectly capable of taking into account the constitutional dimension of the rights asserted by [a] First Nation. There is no need to invent a new 'constitutional remedy.'"
B. Did the chambers judge err in holding that the Crown failed to act honourably by delegating to ministry officials the duty to consult and accommodate, without also providing those officials with the necessary powers to consider fully, and to accommodate reasonably, the petitioners’ concerns?
The province contended that such a holding would compel a statutory decision maker, such as the B.C. Ministry of Energy, Mines and Petroleum Resources ("MEMPR"), to go potentially beyond its statutory mandates in discharging the duty to consult. Again, the Court disagreed, concluding that there was nothing in the legislation creating and governing MEMPR "that would prevent that body from consulting whatever resources were required in order to make a properly informed decision. A statutory decision maker may well require the assistance or advice of others with relevant expertise, whether from other government ministries, or from outside consultants." Citing again the Beckman decision, the Court further noted that "the Crown’s duty to consult lies upstream of the statutory mandate of decision makers."
C. The Scope of the Duty to Consult
Based on the Supreme Court decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 S.C.R. 650, the coal mining project proponent asserted that the chambers judge erred by considering various "past wrongs" that affected the caribou herd in assessing accommodation and the sustainability of the caribou herd and, consequently, ordering implementation of a plan that addressed not only the protection but also the rehabilitation of the caribou herd. .The analogy in West Moberly, in essence, would be that the mining project proponents ought not to be held accountable for redress on past wrongs that impact Aboriginal rights or title. The Court, holding that the "historical context" was "essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt, distinguished the holding in Rio Tinto by framing the goal of the duty to consult in such instances as one of determining the reality of the situation at hand and "...not to attempt the redress of past wrongs [but] to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs"
D. Interpreting the treaty right to hunt
The province asserted that the chambers judge erred in interpreting West Moberly's treaty right as a specific right to hunt caribou in its traditional area as part of its seasonal round. On this point, the Court held that the treaty right in question ought to be construed liberally and as the First Nation's ancestors would have understood it, while also juxtaposing the understanding that treaty provisions for "taking up land" and "mining" would have introduced. Citing Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 S.C.R. 388, the Court held that the proper focus should be the "continuity in traditional patterns of economic activity" and "traditional patterns of activity and occupation" as guaranteed by Treaty 8. The Court therefore held that the proper question is "whether the proposed activity will adversely affect existing hunting rights" and, consequently, that the chambers judge "did not err in considering the specific location and species of the petitioners’ hunting practices."
E. Was the Consultation Process Reasonable?
West Moberly asked that the project proponent's mining applications be rejected, the proposed mining activities relocated to another area where the caribou herd would not be affected and sought the implementation of a plan for the rehabilitation of the caribou herd. The Court, describing the consultation process as "two ships passing in the night", held that West Moberly should have been "provid[ed] an explanation that, not only had their position been fully considered, but that there were persuasive reasons why the course of action [they] proposed was either not necessary, was impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting the [West Moberly] position, there cannot be said to have been a meaningful consultation." In the Court's view, MEMPR "entered into the consultation process without a full and clear understanding of what the Treaty meant" which doomed the resulting consultation process to being unmeaningful, and therefore unreasonable.
F. Was the chambers judge wrong in determining that only one form of accommodation was reasonable?
Both the province and the project proponent claimed that the chambers judge erred in limiting the West Moberly right to hunt to a single species of caribou or single geographic region. Because the consultation was not meaningful, the Chief Justice’s view was that the proper remedy would be to set aside the order for specific accommodation and remit the issue back for further consultation between the parties. While the Chief Justice declined to give a definitive answer on the issue of the ambit of a judge's discretion, Justice Hinkson reasoned that the order for specific accommodation should be set aside because "the chambers judge conflat[ed] 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 ... the requirement that the Crown put in place a reasonable, active plan for more than the protection of the Burnt Pine caribou herd goes beyond the scope of the duty of reasonable accommodation."