The Supreme Court of Canada has announced that it will not hear
an appeal from the British Columbia Court of Appeal's decision
in West Moberly First Nations v. British Columbia (Chief
Inspector of Mines), 2011 BCCA 247.
West Moberly involved the potential impact of a bulk
coal sampling and exploration program on the West Moberly's
right to hunt, including their right to hunt the Burnt Pine caribou
herd, a herd of 11 animals listed as threatened under the
Species at Risk Act. In a sharply divided decision,
Chief Justice Finch took a broad view of the potential impacts of
the proposed activities and applied this to a species- and
location-specific interpretation of West Moberly's right to
hunt (e.g., if a mine were built, would this potentially affect
West Moberly's right to hunt these caribou) to find that the
Province had not adequately consulted West Moberly. In
contrast, Justice Garson confined her analysis to the potential
impacts of the specific proposed activities and applied these to a
much more generally defined right to hunt, finding that the
Province had adequately consulted West Moberly. Justice
Hinkson did not agree with all of the Chief Justice's findings
but agreed with enough of them to conclude that consultation was
inadequate and that the matter should be sent back to the parties
for further consultation. In sending the matter back however,
the Court of Appeal was unanimous in holding that the lower court
judge should not have expressly ordered the Province to put in
place a recovery plan as part of its duty to consult.
The Supreme Court of Canada's decision means that an appeal
from West Moberly will not be heard. While a decision to deny
leave does not mean that the Court necessarily agrees with the
decision below, the Court's decision will mean that the
uncertainty created by the three divergent decisions will
To view the Court of Appeal's decision in June 2011, please
view our original
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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