In March of this year, the West Moberly First Nations
("West Moberly"), a Treaty 8 First Nation, successfully
stalled work by First Coal Corporation ("First Coal") on
a project in the Peace River coal field near Chetwynd, B.C., until
a plan to protect and augment the dwindling Burnt Pine caribou herd
could be introduced.
West Moberly brought judicial review proceedings against British
Columbia and First Coal Corporation claiming that the Crown had
failed to adequately consult with or accommodate West Moberly's
right to hunt under Treaty 8 before Crown decision-makers
authorized two permit amendments and a licence to cut timber in
favour of First Coal.
Both the Crown and First Coal engaged in consultation with West
Moberly, but no agreement was reached on how to deal with the
potential impact of the exploration work on the Burnt Pine caribou
herd. In the Crown's view, the Burnt Pine herd was one of nine
caribou herds in the area, and represented only a very small
portion of the total population of caribou available to meet West
Moberly's hunting needs. In West Moberly's view, because
the Burnt Pine herd had only eleven members left it was not
sufficient to mitigate impacts, rather, a plan to actively
rehabilitate the herd was necessary prior to any further mining
development in the area.
On this basis, West Moberly challenged three decisions issued by
three separate Crown decision-makers enabling First Coal to engage
in advanced exploration work on the site.
The Supreme Court of BC sided with West Moberly. Mr. Justice
Williamson held that while the Crown had consulted with West
Moberly, and had engaged in or approved measures that would likely
mitigate the environmental impact of First Coal's operations,
these measures had not been undertaken in response to, and
therefore could not accommodate, West Moberly's concern about
the violation of its treaty right to hunt caribou. The Court
dismissed the Crown's argument that West Moberly did not have a
right to hunt caribou from one specific area within the larger
treaty territory. Citing the reasoning of the Supreme Court of
Canada in the 2005 case of Mikisew Cree First Nation, Mr.
Justice Williamson held that it was "not an accommodation to
say 'hunt elsewhere.'" The Court also criticized Crown
communications to West Moberly suggesting that it was beyond the
scope of the present consultation to deal with the cumulative
impacts of First Coal's project on West Moberly's
traditional territory. Mr. Justice Williamson held that "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
The Court ordered a 90-day stay during which the Crown was
ordered to consult with West Moberly to effect a "reasonable,
active plan for the protection and augmentation of the Burnt Pine
herd." The Crown has appealed Mr. Justice Williamson's
decision, although the appeal is in abeyance while the parties
attempt to devise a rehabilitation plan for the caribou
satisfactory to all.
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