The majority of the British Columbia Court of Appeal (Court of Appeal) suggested in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, that under certain circumstances Treaty 8 protected the right to hunt a specific herd of animals and not merely a general right to hunt for food. The Court considered the contemporary nature and scope of the Treaty 8 right to hunt and opined that it is defined by the understanding of the treaty parties at the time it was concluded. The Court of Appeal found that the proposed mining exploration program did not resemble the understanding of the treaty parties, which "would have been prospectors using pack animals and working with hand tools."
In 2005, a corporation applied for a permit to extract a coal sample from land in British Columbia (B.C.) that the West Moberly First Nations (WMFN) claimed was subject to their right to hunt under Treaty 8 (the Treaty). The corporation made several applications to the Minister of Energy, Mines and Petroleum Resources (MEMPR) in relation to its exploration and sampling projects, all of which were opposed by the WMFN. In 2008, the corporation sought to respond to the WMFN's concerns by developing a caribou mitigation and monitoring plan. Throughout this process, the MEMPR was engaged in consultation with the WMFN. The corporation was also engaged in consultation with the WMFN. In 2009, the MEMPR approved the corporation's exploration and sampling program by amending its existing Mines Act permits. Subsequently, these approvals have been the subject of judicial review and appeal proceedings.
The B.C. government argued that the Treaty did not give the WMFN the right to hunt a specific species on a limited area of land. Rather the Treaty established the WMFN's general right to hunt anywhere on its traditional Treaty lands and for such species as may be available. The BC government also argued that the WMFN's right to hunt under the Treaty was subject to the Crown's right to take up land for mining and other purposes.
The WMFN argued that Treaty gave them the right to hunt a specific, threatened herd of animals likely to be affected by the regulatory approvals they were challenging.
The Chief Justice of the Court of Appeal, supported on the Treaty interpretation issue by a concurring judgment, ruled that the WMFN's contemporary right to hunt under the Treaty was defined by the understanding of the parties at the time the Treaty was concluded. The content of that treaty right is derived from the language used in the Treaty, informed by the report of the Treaty Commissioners. According to the majority, the Treaty granted the WMFN the right to continue the traditional hunting activities they pursued before the Treaty came into effect. The WMFN hunted a specific herd of animals at the time the Treaty was concluded and therefore the duty to consult arose because of the potential impacts the corporation's development plans may have on that herd. The herd-specific hunting right does not detract from the WMFN's general right to hunt such species as are available on their traditional Treaty lands.
The majority of the Court of Appeal also ruled on the Treaty provision dealing with the Crown's taking up of land for mining. The Court of Appeal acknowledged that the express terms of the Treaty itself subordinate the right to hunt to the Crown's right to take up land for mining and other purposes. However, the Court of Appeal suggested that the contemporary meaning of mining under the Treaty is defined by the understanding of the parties at the time the Treaty was concluded. The Court noted that "mining" as contemplated in the Treaty involved "prospectors using pack animals and working with hand tools" whereas the project at issue, involving "road building, excavations, tunnelling, and the use of large vehicles, equipment and structures" was not contemplated by those negotiating the Treaty.
Implications for Resource Developers
- The assertion of herd-specific hunting rights under Treaty 8 would likely require mitigation at the level of the herd, narrowing the scope of available mitigation options.
- The possible need for herd-specific mitigation could allow a handful of individual animals to pose a substantial challenge in the regulatory approval process, even for major projects.
- The Court of Appeal's suggestion that a historical interpretation of "mining" under the Treaty should be relied upon may increase the consultation and accommodation requirements owed to Treaty First Nations.
Martin Ignasiak is a partner in Osler's Calgary office whose practice focuses on regulatory and environmental law. Colin Feasby represents clients in corporate and securities litigation, energy industry disputes, franchise litigation, and constitutional matters. Luke Rasmussen completed his Juris Doctor degree at the University of Toronto.
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