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


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)

The West Moberly First Nations filed a petition for judicial review in Supreme Court seeking to quash three statutory decisions permitting (1) an amendment to an existing Mines Act permit to obtain a bulk sample of coal; (2) an amendment to a second Mines Act permit to conduct drilling as part of its advanced exploration program on the same lands; and, (3) a Licence to Cut. The First Nation claimed that the statutory decision makers failed to consult adequately and meaningfully and, failed to reasonably accommodate their hunting rights guaranteed by Treaty No. 8. At issue was a population of caribou in the area of the proponent's operations, which has been red-listed as threatened (near extinction) under the federal Species At Risk Act. Also, the First Nation claimed that the District Manager for the Ministry of Forests and Range improperly fettered his discretion in permitting the Licence to Cut.

The First Nation led evidence that while they regularly communicated with various Crown officials regarding their hunting rights, the Crown was unresponsive or responded with "standard form referral letters." Also, they provided evidence that other employees of the Crown raised concerns about the status of the threatened herd, but those were largely ignored. The Crown and the proponent denied the petitioner's claims and submitted that deep consultation had occured and that the First Nation's concerns were accommodated by: reducing the proponent's Bulk Sampling program; implenting the proponent's mitigation and monitoring plan; closing an access road; and, by adopting a less destructive method of mining (the ADDCAR system). However, Justice Williamson rejected these assertions as most of the accommodation put in place did not directly respond to the First Nation's concerns.

Justice Williamson found that while the Crown did consult, consultation was not meaningful and proper accommodation did not occur on the bases that: the Crown was extremely slow consulting on its inital assessment of the potential adverse affects of proponent's activities on the First Nation's treaty rights; the "standard form referral letters" did not address the real concerns of the First Nations regarding the threatened herd; and, the Crown failed to consider the First Nation's report on the danger to the herd and its relationship to the First Nations protected treaty right. At paragraph 53 " I conclude that a balancing of the treaty rights of Native peoples with the rights of the public generally, including the development of resources for the benefit of the community as a whole, is not achieved if caribou herds in the affected territories are extirpated."And, at paragraph 55, "The honour of the Crown is not satisfied if the Crown delegates its responsibilities to officials who respond to First Nations' concerns by saying the necessary assessment of proposed "taking up" of areas subject to treaty rights is beyond the scope of their authority."

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"."

On the second issue, Justice Williamson found that the Minister of Forests did not fetter its discretion. Rather, he found that the Minister has the discretion to determine whether to approve a licence to cut under the Forest Act where the applicant already holds an exploration permit: "It is apparent upon a reading of the above subsections that the object of this particular piece of legislation is to ensure that those who hold permits for the purpose of exploring for and developing a coal mine are entitled to remove timber subject to conditions set out in the occupant's licence to cut."

The parties have 90 days from the date of the decision to consult and put in place an active plan for the protection and augmentation of the Burnt Pine herd that takes into account the view of the West Moberly First Nations.

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