In a recent decision, the Supreme Court of British Columbia ordered a stay of provincial exploration permits for 90 days and ordered the Crown, in consultation with the West Moberly First Nation (West Moberly), to proceed expeditiously to put in place a reasonable, active plan for the protection and augmentation of a local caribou herd. The Court's basis for ordering the stay was that:
“… a balancing of 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.”
This decision provides an 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, the courts, in most cases, have been more focused on the process of consultation, rather than making determinations regarding the actual adequacy of the accommodation offered. This case also demonstrates how aboriginal law is influencing the shape of current environmental law, particularly the protection of species at risk.
Background on West Moberly’s Application
In its judicial review application, West Moberly applied for a declaration of invalidity in respect of three exploration-related permits issued by the provincial government to First Coal Corporation (“First Coal”). These permits authorized First Coal to: (1) obtain bulk samples of coal, (2) conduct an advanced exploration program, and (3) clear trees to facilitate this exploration. West Moberly claimed that, in issuing these permits, the Crown had failed to consult adequately and meaningfully concerning their Treaty 8 right to hunt caribou, and had failed to reasonably accommodate their hunting rights.
a) Duty to Consult
All parties agreed that the Crown was required to consult and accommodate West Moberly on the basis of their treaty right to hunt, but the parties diverged on the nature and scope of that right.
The Court found that while the Crown did consult, the consultation was not meaningful and that proper accommodation did not occur. Factors which influenced this finding included the following: (1) the Crown was extremely slow to consult on its initial assessment of the potential adverse affects of proponent's activities on the First Nation's treaty rights; (2) the "standard form referral letters" did not address the real concerns of the First Nations regarding the threatened herd; and (3) the Crown failed to consider the First Nation's report on the danger to the herd and its relationship to the First Nation’s protected treaty right.
(b) Treaty Right to Hunt and Reasonable Accommodation
The West Moberly also argued that reasonable accommodation requires the Crown to implement a rehabilitation plan for the Burnt Pine Herd of caribou, which lives in the area of First Coal’s mineral tenure, and whose population has been reduced to 11.
Following the Supreme Court of Canada in Mikisew Cree First Nation v. Canada, in which the Supreme Court of Canada held that the meaningful right to hunt under Treaty 8 means a right to hunt within the particular First Nation’s traditional territories, the Court rejected the Crown’s argument that because the Burnt Pine Herd of Caribou was only a "minor part" of the hunting potential of the West Moberly, they could hunt caribou elsewhere.
(c) The Remedy and the Species at Risk Act
The Burnt Pine herd of Caribou form part of the Southern Mountain population of Woodland Caribou, which is a species listed as “threatened” under the federal Species at Risk Act (SARA).
The Court's remedy of an order to plan recovery and augmentation of the Burnt Pine herd has caused much debate among those within industry. The remedy mandates a specific action regarding a small portion of a listed species’ population which seems to run counter to the national development of a holistic recovery strategy for the Southern Mountain population of the woodland caribou under SARA, or the current plan being implemented by British Columbia for a portion of this particular population. Arguably, as well, the Court has now imposed recovery planning requirements for one herd that may ultimately not be compatible with the recovery planning that is required under SARA for the species as a whole.
The decision also raises some questions as to whether the broad federal population-level recovery plans made under SARA will insulate provincial permit-holders from allegations that the permitted activity would impose unreasonable impacts on asserted aboriginal and treaty rights.
The decision can be found at http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc359/2010bcsc359.html