On March 19, 2010, Mr. Justice Williamson of the Supreme Court of British Columbia rendered his decision in West Moberly First Nations v. B.C. (Chief Inspector of Mines).1 The decision concerned an application for judicial review by the West Moberly First Nations ("West Moberly") seeking to quash three decisions regarding an advanced exploration program proposed by First Coal Corporation ("First Coal") on the basis of inadequate consultation and accommodation. Williamson J. held that the Crown did not meaningfully consult with West Moberly and that the accommodation put in place was inadequate in the circumstances.2
The West Moberly application for judicial review concerned three decisions of the Crown:
a. the September 1, 2009 decision of the Chief Inspector of Mines to amend the existing permit to obtain a 50,000 ton bulk sample of coal; b. the 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 c. the 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 West Moberly’s rights when the Decisions were issued. West Moberly submitted that the Decisions should be declared invalid and set aside.
The Crown and First Coal argued that the Crown adequately discharged its duty to consult West Moberly. Treaty 8 contemplates that the Crown may "take up" lands covered by the Treaty for various activities, including mining.
West Moberly submitted that 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 had been reduced to 11 caribou in total.
Williamson J. concluded that although the Crown consulted the West Moberly, such consultation was not meaningful under the circumstances.3 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 substantial assessment by the Crown was released;4 and
- 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".5
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".6
The Crown decision makers stated that it was beyond the scope of their authority to assess the overall potential effects of "taking up" lands subject to Treaty 8.7 There was also a suggestion that because the Burnt Pine herd was only a "minor part" of the hunting potential of the West Moberly, and therefore, they could hunt caribou elsewhere. Williamson J. noted that the Supreme Court of Canada has already held in Mikisew Cree First Nation v. Canada8 that the meaningful right to hunt under Treaty 8 means a right to hunt within the particular First Nation’s traditional territories.9 Williamson J. stated:
"The area impacted by the First Coal project includes a portion of West Moberly’s traditional seasonal ground of hunting caribou, and impacts not only hunting for food, but upon the use of caribou for other cultural and practical reasons. It is not accommodation to say "hunt elsewhere"".10
Williamson J. concluded that quashing the Decisions would not be a "proper balancing of the rights of the petitioners [West Moberly] with other First Nations and the public, including First Coal".11 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 put into place a "reasonable, active plan for the protection and augmentation of the Burnt Pine herd".12
This decision provides a rare example of a court reviewing whether the accommodation flowing from a consultation process was adequate for the purposes of meeting the "honour of the Crown". Generally speaking, courts have been more focused on the process of consultation (in keeping with McLachlin C.J.’s comments in the Supreme Court of Canada’s decision in Haida v. B.C.), rather than making determinations regarding the actual adequacy of the accommodation offered.
It is noteworthy that the Court assessed the adequacy of the consultation process itself with reference to the adequacy of the accommodation offered. Although the Court provided some additional reasoning for its conclusion that consultation was not "meaningful", it appears the primary reason for such conclusion was because the accommodation offered did not include an active plan for the protection and rehabilitation of the Burnt Pine herd, the consultation could not have been meaningful. Indeed, the Court specifically prescribed what accommodation would be appropriate in these circumstances, stating that "[t]his accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd."13 Such direction appears somewhat incongruous with the decision by the Court not to quash the Decisions, but rather leave it to the parties to work out more suitable accommodation.
The link between the adequacy of the consultation process and the accommodation offered has manifested itself in a number of recent decisions, raising the question of whether courts are considering the accommodation offered as evidence to assess the overall reasonableness of the consultation and accommodation process, or if courts are substituting their own judgement on what the outcome of the consultation and accommodation process ought to have been. It is clear, however, that courts are willing to assess the accommodation measures which are offered as part of the consultation and accommodation process and that such accommodation measures must be rationally connected to, and reasonably attempt to address, the concerns raised by an aboriginal group.