In a case1 that may be appealed to the Supreme Court of Canada, the permits issued by the BC government to a mining company to engage in exploration and sampling projects have been suspended and the BC government has been ordered to hold a new consultation process.
First Coal Corporation obtained an amendment to existing permits from the BC Ministry of Energy, Mines and Petroleum Resources which would allow the company to extract a 50,000 tonne bulk sample of coal and drill 173 test holes in an area subject to Treaty 8.2 West Moberly First Nations, signatories of Treaty 8, contested the validity of the permits. They argued that their right to hunt caribou in the affected area had not been given due consideration by the province during the consultation process and the province had not fulfilled its duty to take steps to protect and rehabilitate the Burnt Pine herd, which is directly threatened by First Coal’s exploration work.
These were the circumstances in which the Court of Appeal had to determine the scope of the aboriginal petitioners’ Treaty 8 rights and British Columbia’s duty to consult. West Moberly First Nations argued that the province should be required to consider not only the immediate effects of the permits sought but also the impact of earlier projects (the construction of a dam and the creation of a reservoir) which had seriously affected the Burnt Pine herd, as well as the possible impact of coal mining if the exploration work produced positive results.
In a split decision the Court of Appeal ordered the suspension of First Coal’s permits and the holding of new consultations.
The scope of the obligation to consult
The judges for the majority, Chief Justice Finch and Justice Hinkson (who concurred in the reasons of the Chief Justice but wrote separate reasons on the question of accommodation) said that First Coal’s exploration work would have an impact on the Treaty 8 rights and that British Columbia should have considered the impact of past projects in its analysis given the vulnerability of the Burnt Pine herd. According to Finch C.J. caribou is an important part of the traditional lifestyle and cultural identity of the West Moberly First Nations. The question is not one of correcting past wrongs but of considering the impact of continuing exploration on an already decimated caribou herd.
Finch C.J. remarked that the consultation should examine the potential effects of the permits applied for in order to identify what accommodations might be required. However, the impact of possible future mining should also be considered, since the purpose of exploration work is to find out if such mining is feasible.
In her minority opinion, Garson J. wrote that although there is a connection between the possible prejudicial effects of the contested permits and “past wrongs” and it is necessary to consider the fragile state of the caribou herd, the only issue that should be considered is whether there is a causal relationship between the effects of the permits sought by First Coal and the threat to the Burnt Pine herd. In determining the scope of the province’s duty to consult, it would be incorrect to tie the need to take steps to rehabilitate the Burnt Pine herd to the potential impact of the contested permits. As for the effects of possible mining activity, Garson J. pointed out that the project would be subject to environmental assessment at a subsequent stage.
The scope of Treaty 8 rights
The majority considered that although Treaty 8 does not name particular species or hunting grounds, it guarantees the signatory First Nations that they may continue their traditional economic activities and that their traditional activities and occupations will be respected. The consultation should therefore include the possible harmful effects of the proposed activities on the caribou and the ability of the aboriginal petitioners to hunt this species in its feeding grounds.
Garson J. was of the opinion that Treaty 8 does not guarantee the West Moberly First Nations a specific right to hunt the Burnt Pine caribou herd. She was of the opinion that the Crown must maintain a meaningful hunting right in the petitioners’ traditional territory. The bundle of rights protected by the Treaty includes the right to participate in various hunting activities and to hunt several species. In granting permits, the province is entitled to consider the abundance of other species and the presence of other herds of caribou in the traditional territory of the West Moberly First Nations. She also pointed out that Treaty 8 does not guarantee that the Crown’s use of the land will continue unchanged from the time when the treaty was originally signed.
The majority considered that the consultation process was not meaningful since British Columbia had acted as though the exploration work would proceed, subject to measures to reduce negative impacts, without ever considering the possibility of accepting the aboriginal petitioners’ position. They also noted that the province did not explain why the aboriginal petitioners’ proposal was not considered.
On the other hand, Garson J. was of the opinion that the Crown had discharged its duty to consult. She clearly set out why the West Moberly First Nations’ demands for accommodation were not met.
Finch C.J. did not address the question as to the accommodations that would be required in the circumstances, finding that meaningful consultation must be held first. Hinkson J., meanwhile, did not believe that the province’s duty to accommodate required it to take steps to rehabilitate the Burnt Pine herd in the circumstances, as such steps are not required as a direct consequence of the permits applied for by First Coal.
This decision of the British Columbia Court of Appeal raises two important issues: 1) What is the scope of the rights acknowledged in the historic treaties entered into in Ontario, the Prairie provinces and North-eastern British Columbia? Can these treaties be interpreted as acknowledging specific rights of First Nations over one or more species in specific territories or do they instead acknowledge a general right to carry on traditional activities on First Nations’ ancestral lands? 2) In the wake of the Rio Tinto decision,3 how much consideration must be given to the effects of completed development projects and the possible effects of subsequent phases of a project in the consultation and accommodation process?
1 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247.
2 Treaty 8, entered into in 1899, covers northeastern British Columbia, northern Alberta and northwestern Saskatchewan.
3 Recent Supreme Court of Canada decision on the duty to consult Aboriginal Peoples, November 23, 2010.