In West Moberly First Nations v. British Columbia (Chief Inspector of Mines), the British Columbia Court of Appeal considered the scope of the Crown’s duty to consult and accommodate First Nations treaty rights. The Court found that Crown delegates have the duty to take First Nations rights into consideration even if it is not included in their statutory mandate. It affirmed that historical context and potential future developments are relevant to the duty to consider treaty hunting rights. The majority held that these can include species- or herd-specific rights. The Court also suggested that orders directing specific accommodation must be avoided whenever possible in favour of orders directing further consultation.
The case arose when the West Moberly First Nations (WMFN) disputed an order by the BC Ministry of Energy, Mines and Petroleum Resources (MEMPR) granting sampling and exploration permits to a coal company in the WMFN traditional hunting ground. They argued that the order violated the First Nations’ Treaty hunting rights. Chief Justice Finch, writing for the majority, affirmed the Supreme Court of British Columbia’s issuance of a stay for lack of consultation and accommodation but set aside the lower court’s accommodation order directing the B.C. government to protect a specific caribou herd. He confirmed that judicial review was a correct forum to determine the scope of an aboriginal treaty right. He held that MEMPR was not limited by its statutory mandate so far as its duty to consult was concerned. He found that the MEMPR was bound to take cognizance of the Treaty and “its true interpretation” even though its mandate did not include the authority to consider or accommodate First Nations issues. The Chief Justice reasoned that the Treaty was part of the legal and constitutional limits that the MEMPR was inherently bound to respect. He also held that the chambers judge did not err in considering the specific location and species of the First Nations’ hunting practices.
In his opinion, the Chief Justice found that the duty to consult may include consideration of “historical context” if it is “essential to a proper understanding of the seriousness of the potential impacts” on Aboriginal treaty rights. He held that consideration of such matters is acceptable if it is not an attempt to redress past wrongs, but rather recognition of an existing state of affairs. Chief Justice Finch found that consideration of hypothetical long-term developments that flow from the decision under consideration may fall within the scope of the duty to consult as well. He distinguished Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council because the decision under consideration in this case will have an adverse impact on a First Nation right, but the decision in Rio Tinto would not have. However, the Chief Justice set aside the specific accommodation order made by the chambers judge, despite finding that the remedial powers in the Judicial Review Procedure Act granted him sufficiently broad discretion to make the order. Chief Justice Finch held that in past cases, courts have shown a reluctance to make specific accommodation orders so as not to impair further consultation.
Hinkson and Garson J.J.A. agreed to set aside the specific accommodation order, but disagreed on the scope of the duty to consult. Justice Hinkson cited Rio Tinto in his concurrence for the proposition that the duty to accommodate does not oblige the Crown to consider any prior harms not causally related to the decision under consideration. He did, however, acknowledge that historical context is relevant in considering existing conditions. In her dissent, Garson, J.A., agreed with Justice Hinkson about the duty to consult, but also took issue with the characterization of the treaty right. Pointing to precedent and the language of the Treaty, she reasoned that the protected right was one of hunting in general, not a species- or herd-specific right to hunt caribou. Since other ungulates were still available for hunting by the West Moberly, Garson, J.A. reasoned that the impact of the permit approvals was less significant and therefore that reasonable accommodation had occurred.
May 25, 2011.
http://www.courts.gov.bc.ca/jdb-txt/CA/11/02/2011BCCA0247.htm
Diego Beltran, Marc Gibson & Kai Sheffield
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