This British Columbia Court of Appeal decision addresses the
Crown's duty to consult a First Nation in respect of impacts
from mining exploration activities on a very small herd of
caribou1 in northeastern B.C. The caribou involved are
part of a population that is listed as "threatened" under
the federal Species at Risk Act, S.C. 2002, c. 29. The
evidence before the Court was that the proposed exploration
activity would have an impact on this small herd of caribou that
had already experienced a significant population decline as a
result of development activities.
A majority of the Court of Appeal upheld the decision of the
B.C. Supreme Court in West Moberly First Nations v. British
Columbia (Chief Inspector of Mines), 2010 BCSC 359, that the
Crown, through the Ministry of Energy, Mines and Petroleum
Resources (Ministry), had breached its obligations to adequately
consult or accommodate the West Moberly in respect of its
Treaty 8 (Treaty) hunting rights, in the course of issuing
approvals for a bulk sampling program and an advanced exploration
program. Of particular relevance for the majority of the Court of
Appeal, was that the Ministry had misapprehended or misinterpreted
the nature of the West Moberly's rights under the Treaty, and
had operated on the erroneous assumption that West Moberly's
Treaty right to hunt was subject to, or inferior to, the
Crown's right to take up land for mining or other purposes. By
setting out on a consultation process on the basis of this
misunderstanding, the process could be seen as neither reasonable
nor meaningful, and amounted " ... to nothing more than an
opportunity for the First Nations 'to blow off
A majority of the Court of Appeal also partially distinguished
the recently released decision of the Supreme Court of Canada in
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Counsel (Rio
Tinto), 2010 SCC 43. In Rio Tinto, the Supreme Court of
Canada ruled that for a duty to consult to arise there must be a
causal relationship between the proposed government conduct or
decision, and a potential impact on a First Nation interest, and
that past impacts do not suffice. In this case, a majority of the
Court of Appeal determined that past impacts on the caribou
population were important for understanding the precarious state in
which the remaining caribou existed, and were therefore relevant
for providing a baseline context within which to measure potential
future impacts from proposed exploration activities. In addition,
the majority determined that the chambers judge had not erred when
he considered the potential impacts from a fully operational mine
at the site, even though that was not a matter before the decision
With respect to remedy, the Court of Appeal overturned the order
made by the chambers judge that the Ministry was, within 90 days of
the order, to prepare a caribou "protection and augmentation
program ... " Finch, CJBC rejected the remedy because it was
too prescriptive in advance of appropriate consultation. Hinkson,
JA took a different approach and found that it was inappropriate to
impose a requirement for an "augmentation program"
because by definition, it would be focused on redressing historic
impacts on the caribou as opposed to the potential impacts from the
new activity under consideration.
1. 11 members as of the date of the hearing
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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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