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The British Columbia Court of Appeal took a step forward last week in recognizing the duty to consult and accommodate, by affirming a decision that B.C. failed to consult with the West Moberly First Nations about impacts to their treaty rights.
The West Moberly First Nations, descendants of the Mountain Dunne-Za (Beaver Indians), had challenged the provincial government’s decision to allow sampling – with a view to coal mining – on their hunting grounds. Previous development in the area, land subject to Treaty 8, had reduced the size of the Burnt Pine caribou herd to only 11 animals. The Mountain Dunne-Za had historically hunted caribou by following their seasonal migrations, but since the 1970s, the West Moberly elders had to impose a ban on their members’ hunting in an effort to preserve the herd.
The West Moberly First Nations opposed approval of any sampling and wanted a plan to rehabilitate the herd. B.C. officials moved ahead to issue a permit for sampling, making some concessions such as discontinuing use of a road and reducing the sampling amount. This still did not address the concerns of the West Moberly First Nations, who took the position that any sampling and future mining, taken cumulatively with previous developments, would have irreversible and significant impacts on their treaty rights. B.C. officials responded that it was not within their mandate to address concerns of this scope. The First Nations brought a judicial review, claiming that the province had failed to adequately consult.
The judge agreed with the West Moberly First Nations, staying the permit for sampling for a period of time until proper accommodation – including developing a rehabilitation plan for the Burnt Pine caribou herd – could be concluded. On appeal, the decision was affirmed.
Although the court was not unanimous (one concurring and one dissenting decision), the Chief Justice of the B.C. Court of Appeal wrote the ruling confirming the first judge’s holdings on a number of important issues, varying only the order for accommodation. Instead, the Court of Appeal sent the issue back to the parties for more consultation, leaving it to them to determine what accommodation would be appropriate. In finding consultation was not adequate, the B.C. Court of Appeal stated that in order to fulfill meaningful consultation in this context, it was necessary to tell the First Nations that their position had been fully considered, and also provide persuasive reasons why the course of action they had proposed was not necessary, impractical or unreasonable. B.C.’s approach to consultation was flawed:
It based its concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice. However, to commence consultation on that basis does not recognized the full range of possible outcomes and amounts to nothing more that an opportunity for the First Nations “to blow off steam”
The following are other highlights of Chief Justice Finch’s decision:
1) Government officials are not limited by statutory mandate when it comes to fulfilling the duty to consult. It is a well-established principle that statutory decision makers are required to respect legal and constitutional limits, and the Chief Justice’s decision reiterated that “the Crown’s duty to consult lies upstream of the statutory mandate of decision makers.”
2) B.C. and Alberta, who intervened in the appeal, tried to use the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council to say that the only matter to be considered in consultation was the permit for sampling – not cumulative impacts of past development nor the subsequent mining that would take place. The B.C. Court of Appeal rejected this argument, setting out a proper interpretation of the Supreme Court’s ruling: Carrier Sekani does not say what has gone before the current decision is irrelevant, and in this case “the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt.” Also, there is nothing in Carrier Sekani that says that future impacts should be disregarded. Again, in this case, the impact of full blown mining on the treaty right was within the scope of the duty to consult.
3) Consultation must begin with the premise that the First Nations are entitled to what they have been granted by the treaty. In Treaty 8, the First Nations had the right to hunt in the same means as before the treaty. While specific areas and locations of hunting are not set out in the treaty, the Chief Justice found that there was a guarantee of continuity of traditional patterns of activity and occupation. Given that, the treaty right to hunt caribou in a specific location is properly framed as location and species specific.
The findings in this case are good news for First Nations seeking to address cumulative impacts of resource development, and seeking to get meaningful consultation on all their concerns from government bodies. However, the fact that the decision was split means the matter may not end here: the case might head to the Supreme Court.
 West Moberly First Nations v. British Columbia (Chief Inspector of Mines) 2011 BCCA 247 (CanLII), at para. 144.
 West Moberly, at para. 149.
 West Moberly, at para. 106.
 2010 SCC 43 (CanLII).
 West Moberly, at para. 117.
 West Moberly, at para. 125.
 West Moberly, at paras. 137, 139, 140.
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