On May 28, 2014, the BC Supreme Court dismissed a petition brought by the West Moberly First Nations (“West Moberly”) alleging that the provincial Crown failed to adequately consult and seek to accommodate prior to permitting a coal company, Canadian Kailuan Dehua Mines Co. (“CKD”), to undertake bulk coal sampling in northeast British Columbia.

Background: Gething Bulk Sample Project

The Gething Bulk Sample Project (the “Bulk Sample Project”) is located in West Moberly’s claimed traditional territory, approximately 25 kilometres west of Hudson’s Hope, BC. The Bulk Sample Project involves excavation of a 100,000 tonne underground bulk sample and is a necessary precursor to the construction and operation of the proposed Gething coal mine. The full mine will require an environmental assessment certificate in order to proceed.

As a signatory to Treaty 8, West Moberly holds hunting, trapping and fishing rights that are subject to the right of the Crown to take up lands for mining (among other things). West Moberly, together with two other First Nations, is also party to an Economic Benefits Agreement (“EBA”) with the Province. The EBA establishes a revenue sharing regime and standardized consultation and accommodation protocol for resource development on Treaty 8 lands.

From the outset, the Crown acknowledged it had a duty to consult and that the Bulk Sample Project had the potential to adversely impact West Moberly’s constitutionally-protected treaty rights. The record disclosed that the Crown, CKD and West Moberly had been engaged in consultation since 2005.

In 2013, West Moberly filed a petition for judicial review arguing the Crown failed to discharge its duty to consult prior to authorizing the Bulk Sample Project to proceed. A key concern raised by West Moberly was the project’s potential impact on a vulnerable population of 25 caribou, known as the Moberly herd.

The previous decision of the BC Court of Appeal in West Moberly First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum Resources), 2011 BCCA 247 ("West Moberly 1") is particularly germane to the case at bar. West Moberly 1 concerned the effects of coal development on another caribou herd further to the south, the Burnt Pine herd. In that decision, a majority of the Court of Appeal held that the Crown failed to adequately consult and seek to accommodate West Moberly prior to permitting a coal company to undertake bulk sampling and exploratory drilling in its claimed traditional territory.

The Decision on West Moberly’s Petition

The Court held that the Crown adequately discharged its duty to consult and seek to accommodate West Moberly.

Authorizing the Bulk Sample Project before completing further studies was reasonable

West Moberly argued that the consultation process was flawed on the grounds it was incomplete. In particular, the Crown should not have authorized the Bulk Sample Project prior to the conclusion of a cultural study by West Moberly. The Court disagreed, noting the limited scope of the Bulk Sample Project, and observing that “more study, more consultation and more accommodation” would nearly always be possible.

The Court noted that West Moberly had more than two years to provide their views on the Bulk Sample Project, and commented that all sides need to work at the consultation process in a meaningful way. According to the Court, the record of dealings between the litigants was “staggering for its length and breadth”. At certain points during the consultation process, West Moberly chose not to engage with the Crown. When the Crown granted the authorizations, it possessed extensive information about West Moberly’s use of the area in the vicinity of the project, together with information about the potential impacts to those uses. The Court was not satisfied that an additional study would have produced new information capable of invalidating the consultation process. In these circumstances, it was not unreasonable for the Crown to authorize the Bulk Sample Project.

The Crown complied with requirements of the EBA

One of the implicit objectives of the EBA is to facilitate operational certainty by eliminating the guess work from the consultation process through a structured procedure for dialogue and exchange.  The Court found that the Crown: (1) provided all relevant project-related information; (2) permitted adequate time for West Moberly to prepare and present their concerns; (3) fully and fairly considered those concerns; (4) explained in writing how those concerns had been taken into account; and (5) where appropriate, accommodated them.  Accommodation offered in this case included:

  • CKD moved the site of the mine portal 1.3 kilometres further away from the site of a cultural camp identified by West Moberly;
  • CKD offered to implement a no-hunting policy on the Bulk Sample Project site;
  • mitigation plans for road safety, wildlife protection, noise reduction, air quality and dust control; and,
  • a ban on active hauling during the months in which the cultural camp was used.

These factors led the Court to conclude that the Crown complied with its obligations under the EBA.

West Moberly 1 distinguished

In West Moberly 1, government experts were unequivocal that the proposed bulk sampling and the proposed mine at issue in that case would destroy vital winter habitat for the Burnt Pine caribou herd. This was not the case for the Moberly herd at the Gething site. Government experts did not express concerns equivalent to those in West Moberly 1. Data compiled by the Province since 2002 indicated that the proposed mine site was situated outside core habitat frequented by the Moberly herd.  On these facts the Court concluded there was no evidence that the Bulk Sample Project or a full mine would harm the caribou.

The Court was careful to note, however, that evidence could emerge later in the regulatory process to challenge this finding and, if so, additional consultation would be necessary. But with respect to the scope of accommodation required to address the condition of the Moberly herd, the court was clear: “a proponent should not have a duty to repair harms or losses which pre-existed both the proponent's involvement and the potential impact of the proposed activity.”

Conclusion

This decision reaffirms what the courts have said on multiple occasions: the consultation process is a two-way street, but it is not an endless road. Timeliness is a core element in the administrative process and courts appear unwilling to render the consultation process invalid when an Aboriginal group is reluctant to engage.

View the full decision: West Moberly First Nations v. British Columbia (Energy and Mines), 2014 BCSC 924.