CAROLINE
FINDLAY
&JANICE
WALTON
The British Columbia Supreme
Court recently issued a decision illustrating the reasonable
accommodation of First Nations
rights and demonstrating how
aboriginal law is influencing the
shape of environmental law.
In West Moberly First Nations
v. British Columbia (Chief
Inspector of Mines) and First Coal
Corporation, [2010] B.C.J. No.
488, the court ordered a 90-day
stay of provincial coal exploration
permits and directed the Crown to
put in place a plan for the protec-
tion and augmentation of a local
caribou herd in consultation with
the West Moberly First Nation
(West Moberly). The court con-
cluded that balancing treaty rights
of First Nations with the rights of
the public, which includes the
development of resources for the
benefit of the community as a
whole, is not achieved if caribou
herds in the First Nation’s territory
are extirpated.
First Nations challenge
West Moberly, which is party to
Treaty 8 in north-eastern B.C.,
applied to the court for a declaration of invalidity in respect of three
exploration-related permits issued
by the provincial government to
First Coal Corporation (First Coal).
West Moberly claimed that 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.
At the heart of this litigation
was the fate of the remaining
members of the local Burnt Pine
Herd of caribou, resident in the
area of First Coal’s mineral tenure.
The Burnt Pine Herd form part of
the Southern Mountain popula-
tion of woodland caribou, which is
a species listed as “threatened”
under the federal Species at Risk
Act (SARA).
Treaty right to hunt
An important aspect of the
court’s decision is how it defined
the nature of the treaty right to
hunt. The Crown argued that the
treaty right was a broad “right to
hunt for meat” (not just caribou)
across the entire traditional territory, and was subject to the Crown’s
right to “take up” land for mining.
The Crown also argued that West
Moberly’s opportunity to hunt
caribou “will not be significantly
reduced” by First Coal’s activities
because of the mitigation steps
First Coal proposed and, more
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importantly, that there were other
caribou herds in the traditional
territory that could be hunted by
the West Moberly.
The court found that the West
Moberly have a treaty-protected
right to hunt caribou in the area
impacted by First Coal’s exploration activities as it was part of West
Moberly’s traditional seasonal
round, to which hunters travelled
at certain times of the year.
Accommodation
The West Moberly did not want
the few remaining members of the
Burnt Pine Herd, which had been
decimated due to historical activities, to be impacted by First Coal’s
activities. First Coal had submitted
a Caribou Mitigation and Monitoring Plan (Mitigation Plan) in
response to concerns expressed by
West Moberly in the consultation
period prior to the permits being
issued. Two government scientists
commented on the Mitigation
Plan, suggesting that while providing measures for avoiding and
minimizing impacts to the herd,
the Mitigation Plan was inconsistent with the goal of maintaining
or increasing caribou numbers and
distribution.
The court found that the
Crown’s failure to establish a plan
for the protection and rehabilitation of the Burnt Pine Herd was a
failure to reasonably accommodate
the West Moberly hunting rights.
In ordering the Crown to develop a
plan to not just protect, but also
augment the Burnt Pine Herd, it
could be argued that the court
ordered the government to find a
way to redress past infringement of
West Moberly’s hunting rights,
which is well beyond the potential
impacts from First Coal’s activities.
Species at Risk issues
SARA requires the federal gov-
ernment to carry out recovery
planning for species listed as
“endangered” or “threatened”
under the Act, in cooperation with
affected First Nations. B.C. does
not have similar legislative require-
ments, but is a party to the federal/
provincial Accord for the Protection
of Species at Risk, which indicates
a commitment by the province to
participate in species recovery
actions. West Moberly claimed
that neither the federal nor provin-
cial governments had lived up to
their legal obligations with respect
to recovery planning for the Burnt
Pine Herd.
Caroline Findlay and Janice
Walton practise environmental
law in the Vancouver office of Blake
Cassels & Graydon, LLP. Findlay
focuses on natural resource project
development work, including nego-
tiations with First Nations. Walton
is the author of Blakes Canadian
Law of Endangered Species.
