In February 2010, the Supreme Court of British Columbia heard an application by West Moberly First Nations to quash three decisions of individuals appointed as statutory decision makers for the Crown:
- A September 1, 2009 decision of the Chief Inspector of Mines with the Ministry of Energy, Mines and Petroleum Resources to issue an amendment to an existing permit pursuant to the Mines Act, R.S.B.C. 1996, c. 293, permitting First Coal Corporation to obtain a 50,000 ton bulk sample of coal from lands referred to as Goodrich Properties.
- A September 14, 2009 decision of the Inspector of Mines to issue an amendment to an existing permit approving a 173 drill hole, and five trench advanced exploration program on the same land, also pursuant to the Mines Act.
- An October 8, 2009 decision of the District Manager for the Ministry of Forests and Range to issue a licence to cut permitting First Coal to cut and clear up to 41 hectares of land to facilitate the advanced exploration.
West Moberly claimed that the land affected by these three decisions is territory subject to their Treaty No. 8 guaranteed traditional right to hunt caribou.
West Moberly argued that the officers of the Crown failed to consult adequately and meaningfully with them concerning their Treaty No. 8 hunting rights, and failed to reasonably accommodate their rights when they issued the permit amendments and the licence to cut. They asked that the three decisions be declared invalid and set aside.
Mr. Justice Williamson released his decision on March 19, 2010. He concluded that the Crown recognized that it had a duty to consult with West Moberly before issuing the two permits and the licence to cut, and that it did consult. However, Mr. Justice Williamson was not satisfied that the consultation was meaningful in the circumstances and found that:
- The Crown was too slow in providing West Moberly with its initial assessment of the potential adverse effects of the project upon West Moberly’s treaty rights.
- The Crown’s failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine caribou herd (after West Moberly presented a detailed report of the danger to that herd and its relationship to their treaty protected right to hunt) was ultimately a failure to reasonably accommodate West Moberly.
- The Crown delegated its duty towards First Nations peoples to department officials, but in doing so did not give those officials the authority to consider fully the First Nations concerns, nor the power to accommodate those concerns.
Mr. Justice Williamson further concluded that the Crown’s “rationale for decision” which outlined the accommodation measures relied on by the Crown did not manifest reasonable accommodation of West Moberly First Nation’s concerns, stating that:
- A key reason for the reduction of the Bulk Sampling program from 100,000 tons to 50,000 tons had been the current economic downturn, not accommodation.
- First Coal’s Caribou Mitigation and Monitoring Plan was not a recovery plan for caribou.
- The closure of an access road to the site was not implemented as part of a concerted rehabilitative plan for the threatened caribou herd.
- The decision to move to a less destructive method of mining was not a response to West Moberly’s concerns.
Moreover, the Court determined that it did not matter that the Burnt Pine herd constituted only a minor part of the hunting potential for the West Moberly. Mr. Justice Williamson relied on the 2005 decision of the Supreme Court of Canada in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, where the Court stated that a meaningful right to hunt means a right to hunt in the First Nation’s traditional territories. The area impacted by the First Coal project includes a portion of West Moberly’s traditional seasonal round of hunting caribou, and Mr. Justice Williamson held that it is not an accommodation to say “hunt elsewhere”.
A key aspect of the decision is the Court’s determination that the honour of the Crown had not been satisfied by the Crown’s delegation to department officials who had not been given the authority to consider fully First Nations concerns, nor the power to accommodate those concerns. At paragraphs 54 and 55 of the decision, Mr. Justice Williamson states that:
Further, here the Crown has delegated its duty towards First Nations peoples to departmental officials. But in so doing it has not given those officials the authority to consider fully the First Nations concerns, nor the power to accommodate those concerns. The same July 20, 2009, document which states that the Ministry of Energy, Mines and Petroleum Resources recognizes that the cumulative impacts of First Coal’s project upon West Moberly’s traditional territory have been raised by both West Moberly and the Ministry of the Environment, states that it is “beyond the scope of this project to fully assess” those impacts.
The honour of the Crown is not satisfied if the Crown delegates its responsibilities to officials who respond to First Nations’ concerns by saying the necessary assessment of proposed “taking up” of areas subject to treaty rights is beyond the scope of their authority (emphasis added).
The Court stayed the effect of the issuing of the amendment of September 14, 2009 permitting the Advanced Exploration Program and suspended the effect of the licence to cut for 90 days from the date of the decision. Mr. Justice Williamson held that the Crown, in consultation with West Moberly, should proceed expeditiously to put in place within that period a reasonable, active plan for the protection and augmentation of the Burnt Pine herd. The Bulk Sample Program subject to the first decision was not part of the order because it had in effect been completed at the time of the decision.