On February 23, 2012, the Supreme Court of Canada denied
leave to appeal the British Columbia Court of Appeal's decision
in West Moberly First Nations v. British Columbia (Chief
Inspector of Mines).1West Moberly holds
that historical context, including the cumulative impacts of past
activities, is relevant when determining the scope of consultation
required in a given case. It also suggests that potential impacts
of future events, such as a full scale mining operation, may be
relevant to the scope of consultation required, even if the Crown
action sought is limited to the authorization of exploration
activities. Given that the Supreme Court has declined leave to
appeal, these issues are likely to remain uncertain for the
The British Columbia Court of Appeal's
The Court of Appeal upheld an Order of a chambers judge
declaring the Crown to be in breach of its duties to consult and
accommodate the West Moberly First Nations concerning permits
granted to First Coal Corporation in connection with an advanced
exploration program. The West Moberly First Nations argued that
proper consultation was not carried out with respect to their
Treaty 8 right to hunt caribou, and without adequate provision for
the protection and restoration of the caribou herd at issue. The
Court of Appeal's decision primarily focused on whether the
chambers judge erred in:
interpreting the Treaty 8 right to hunt as a species-specific
considering the cumulative impacts of past events which led to
the depletion of the caribou herd and future events, namely the
impact of a full mining operation, when determining the scope of
the duty to consult.
Regarding the first issue, the majority of the Court held that,
under certain circumstances, Treaty 8 protects the right to hunt a
specific herd of animals and not merely a general right to hunt for
food. For more detail on this aspect of the Court's decision
and its potential impacts for resource developers, please refer to
Osler Update, dated July 19, 2011, on this issue.
Regarding the second issue, the British Columbia government and
First Coal Corporation argued that the subject matter of
consultation was limited to the potential impact of the challenged
permits and did not extend to potential impacts of past or future
events. The Supreme Court of Canada's decision in Rio Tinto
Alcan Inc. v. Carrier Sekani Tribal Council2 was
relied on in support of this position.
Three separate judgments were rendered. Mr. Justice Finch held
that Rio Tinto was distinguishable on the basis that the
Supreme Court of Canada held that the activity at issue in that
case would have no adverse impacts. Where the decision under
consideration will have an adverse impact on a First
Nations' right, the cumulative impacts of prior actions are not
irrelevant. Further, to the extent that the Crown failed to
consider the impact of a full mining operation, it failed to
provide meaningful consultation.
Mr. Justice Hinkson agreed that a proper understanding of the
seriousness of the potential impacts on the West Moberly First
Nations' treaty rights, and hence the scope of consultation
required, must take into account the historical context. However,
he held that the duty to accommodate in this case does not
require the Crown to rehabilitate the caribou herd to accommodate
for its reduction as a result of past activities; rather, the focus
is on the protection of what remains of the herd.
Madam Justice Garson (dissenting in the result) concurred on the
issue of historical context, but disagreed that the potential
impacts of a possible full-scale mining operation were relevant, as
they would be the subject of a full environmental review in the
Implications for Resource Developers
One clear principle emerges from West Moberly, which is
that historical context is likely to inform the assessment of the
seriousness of potential impacts on Aboriginal and treaty rights,
and hence the scope of consultation required. Beyond this, further
judicial direction will be required to confirm whether potential
future activities are relevant to the duty to consult, and what
constitutes appropriate accommodation in circumstances such as
those in West Moberly. As the Supreme Court of Canada has
declined leave to appeal, certainty on these issues is unlikely to
be obtained in the near future. It is therefore important for
resource developers to take these issues into consideration when
engaging in consultation for a proposed project, regardless of
whether the project is preliminary or advanced in nature.
1. 2011 BCCA 247.
2. 2010 SCC 43.
Shawn Denstedt's practice focuses on
environmental, regulatory and aboriginal law issues.
Katherine Murphy specializes in regulatory,
environmental and Aboriginal law issues.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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