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 steam'."
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 maker.
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.
Footnote
1. 11 members as of the date of the hearing
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