On Wednesday (May 25th) the BC Court of Appeal suspended a permit allowing First Coal Corporation to explore for coal in the habitat of a threatened caribou herd, upholding a decision of the BC Supreme Court that the government had not adequately consulted the West Moberly First Nations on protecting the Burnt Pine caribou herd. The decision confirms that First Nation hunting rights can be a powerful tool in requiring government to protect wildlife and to consider the collective impacts of industrial development on the habitat of threatened and endangered species.
Chief Roland Willson, reacting to the decision, said:
Caribou have been a big part of our culture and diet for countless generations. Our traditional hunting practices are our heritage. This judgment supports our efforts to protect this heritage for future generations. … The court has sent a clear message that BC must take proactive steps to protect the integrity of our Treaty rights. Now that the court has affirmed the government's duty, we look forward to working cooperatively in the coming weeks and months to do what it takes to save this species from extinction.
The decision is not all good news because the BC Court of Appeal did overturn an order in the earlier judgment that required the government to develop a recovery plan for the Burnt Pine Caribou – instead ordering the Crown to undertake a new consultation process with the West Moberly Nations. However, by suspending the permits until consultations with the West Moberly Nations are complete (the trial judge had only suspended the permits for a month and a half), the court may have given the West Moberly greater clout in those consultations.
West Coast Environmental Law is proud to have supported the West Moberly Nation with funding through our Environmental Dispute Resolution Fund, and to have played a role in this precedent-setting decision to suspend the permit to First Coal Corporation. Congratulations to the West Moberly Nations and to their lawyers at Devlin Gailus.
The story so far
The West Moberly First Nations’ court case focused on mining exploration being carried out by First Coal Corporation in the habitat of the Burnt Pine Caribou Herd. As we reported when the case was first launched, the government’s own experts cautioned against the impact on the Burnt Pine herd, which previous development has reduced to 11 members. Dr. Dale Seip, a wildlife habitat ecologist with the Ministry of Forests and Range stated:
…[T]he program will still destroy or compromise substantial amounts of core winter and summer habitat for a small Threatened caribou herd. It will also compromise previous management actions by the Ministry of Forests and Range to protect habitat for this caribou herd. … If the government intends to conserve or recover the Burnt Pine caribou herd, habitat conditions need to be maintained or improved. Allowing additional habitat destruction is incompatible with efforts to recover the population.
Despite these concerns, the Ministry of Energy, Mines and Petroleum Resources approved the exploration permit and associated clearing permits in September, 2009. The West Moberly Nation tried to negotiate, but ultimately challenged the permits in February 2010.
The Honourable Mr. Justice Williamson ruled in favour of the West Moberly in March 2010. As we wrote at the time:
The legal issues hinged on whether the Ministry of Energy and Mines has an obligation to consider the cumulative impacts of development – not just the impacts of this mine – on the caribou herd and whether the Government needed to respond to the West Moberly’s concerns by putting in a plan for the recovery of the herd. The judge concluded:
… The prime concern of the West Moberly is the real potential for the extirpation of the Burnt Pine caribou herd. I conclude that … the Crown’s failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herd is a failure to accommodate reasonably.
But the province apparently did not like that ruling, appealing it on a number of grounds. And no wonder - this case may be the first time in Canada that Aboriginal Treaty Rights have been used to force the government to take steps to protect a threatened species. It has sweeping implications for the way in which governments deal not just with endangered species (and remember that BC does not currently have endangered species legislation) and the cumulative impacts of development.
The Appeal Decision
Two of the three Court of Appeal judges hearing the appeal agreed with the trial judge that the West Moberly had not been adequately consulted or accommodated by the government before the mining permits were issued. Chief Justice Finch and the Honourable Mr. Justice Hinkson actually suspended the permits outright – until consultation can be done (the trial judge had given only a 90 day suspension, during which time he had hoped that the accommodation would occur). This actually shuts down First Coal’s operations, and may give the West Moberly Nation greater clout in the coming consultations.
However, the court unanimously overturned the trial judge’s order requiring the BC government to develop a recovery plan for the Burnt Pine Caribou herd. We were quite excited by this aspect of the Trial Judge’s order, so are disappointed to see this change. The judges had different reasons for overturning this order. Chief Justice Finch seems to have felt that the government should be given an opportunity to consult in light of the court’s findings, without being constrained by such a specific order. Hinkson J. and Garson J. said that the focus on restoring the Caribou herds went beyond the appropriate scope of the consultations – which should focus on mitigating the impacts of First Coal’s mining exploration.
Cumulative Impacts and Aboriginal Consultation
All three judges accepted the view that past impacts on the caribou was an important part of the context in government consultations, although Garson J. felt that the Crown had done so. This was put most strongly by the Chief Justice:
[W]hen the “current decision under consideration” will have an adverse impact on a First Nations right, as in this case … what has gone before is [not] irrelevant. Here, the exploration and sampling projects will have an adverse impact on the petitioners’ treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt. … To take those matters into consideration as within the scope of the duty to consult, is not to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs.
At the same time, however, a majority of the judges expressed the view that consultation should focus on the permits issued to First Coal, and that, at least in the context of this case, the desire to restore the Burnt Pine herd more generally is beyond the scope of the consultation. As Hinkson J. put it:
Accommodation with respect to the prior decimation of the Burnt Pine caribou herd from events prior to the First Coal project is not required vis a vis the First Coal Project. Certainly the loss of the large numbers of caribou in the area in general, and the decimation of the Burnt Pine caribou herd in particular should inform the scope of the necessary consultation process, but cannot, in my view, justify an obligation on the part of the Crown to restore or augment the number of ungulates that have been reduced as a result of activities or events prior to 2005 when First Coal began seeking approval for its project.
The court here is grappling with the Supreme Court of Canada’s 2010 decision in Rio Tinto Alcan v. Carrier Sekani, which had held that current consultations did not need to include consultation and accommodation related to prior infringements of Rights and Title. One legal commentator had suggested that this court decision might undermine the ability of First Nations to raise concerns about the cumulative impacts of development.
It seems that the majority of the BC Court of Appeal is saying, then, that:
- Cumulative impacts – the impacts of past industrial and other development over the landscape – should be considered in understanding the impacts of the current decision(s) on a First Nation and its Rights and Title; but
- (According to 2 of the judges) it is beyond the scope of consultations – or at least consultations in the context of approvals of this type – to seek to redress the impacts of these prior cumulative impacts.
Perhaps this is an attempt to strike a balance, but we’re disturbed by the suggestion that enhancing the health of endangered species has no place in consultations with First Nations. There may well be circumstances in which First Nations and government will be able to reach agreement only if measures for improving species populations are on the table.
Treaty rights are important
The Majority also emphasized that the West Moberly’s interest in the Caribou, and Caribou habitat, is at least as important as the government’s ability to grant mining approvals. Chief Justice Finch criticized the government for failing to recognize this:
Effectively, MEMPR regarded the petitioners’ Treaty 8 right to hunt as subject to, or inferior to, the Crown’s right to take up land for mining or other purposes. There are at least two problems with this approach. First, it is inconsistent with what First Nations peoples were told when the Treaty was signed or adhered to. They were given to understand that they would be as free to make their livelihood by hunting and fishing after the Treaty as before, and that the Treaty would not lead to “forced interference with their mode of life”. Second, the concept of mining, as understood by the treaty makers would never have included the possibility that areas of important ungulate habitat would be destroyed by road building, excavations, trenching, the transport of heavy equipment and excavated materials, and the installation of an “Addcar system”.
Although not fully developed, this concept may further enhance the rights of First Nations facing development in their territory. No longer, according to the Court, should the Province assume that it will be granting approvals for industrial use.
There are a number of questions about what happens next.
- Will the province (or First Coal) seek to appeal this decision to the Supreme Court of Canada?
- Will the province’s consultations with the West Moberly Nations result in better protection for caribou (particularly given the limits of the recovery plan the province announced last June)? Will it deliver on long-standing promises to develop a recovery plan for all caribou in the region?
- Will First Coal proceed with the environmental assessment of the proposed coal mine before the consultation on its exploration permits are completed? If it does, will the assessment process ensure that the caribou are protected and address the concerns of the First Nation? West Coast recently gave a new grant to the West Moberly Nations to assist it in participating in the environmental assessment.
- Will the BC Court of Appeal decision add to the pressure on BC to enact its long-promised endangered species laws?
The West Moberly Nations have won a significant legal victory. We hope that the Province will consult with them in good faith to protect the Burnt Pine and other caribou herds affected by development in their territory.
By Andrew Gage, Staff Lawyer
Photo of West Moberly First Nations' Chief and Council at the BC Court of Appeal courtesy of Devlin Gailus.