BC Supreme Court Finds a Failure to Meaningfully Consult and Accommodate Warrants a Stay of a Mines Act Permit and Suspension of a Licence to Cut
March 23, 2010 by Angeline S.B. Nyce, R.P.F.
The BC Supreme Court stayed the effect of First Coal Corporation's Mines Act Permit Amendment for Advanced Exploration and suspended its forestry Licence to Cut last Friday on finding that the provincial Crown failed to meaningfully consult and properly accommodate the petitioner's, West Moberly First Nations, traditional right to hunt caribou in its treaty territory (see West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359). The remedy follows the jurisdiction of the court "when considering a constitutional right...to stay the effect of the impugned decisions for a determined period and to give directions as to the accommodation which should be put in place within that time," (per Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation (2006), 272 D.L.R. (4th) 727)
Also, Justice Williamson found that the "Crown's failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herd is a failure to accommodate reasonably." Citing the Supreme Court of Canada's decision in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 he further found that "a meaningful right to hunt means a right to hunt in "its" (here West Moberly's) traditional territories...It is not an accomodation to say "hunt elsewhere"."