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West Moberly Protect Caribou from Mining

March 18, 2010

The Honourable Mr. Justice Williamson, in a precedent-setting decision released today, has ordered the BC Government to put in place a plan to protect and recover a herd of threatened Boreal Caribou known as the Burnt Pine Herd.  As far as we know it is the first time in Canada that Aboriginal rights have been used to force the government to protect a threatened species. 

In a previous post we told the story of how the West Moberly First Nation, with support from our Environmental Dispute Resolution Fund, challenged plans for mineral exploration in the Burnt Pine herd’s critical habitat. 

When First Coal Corporation proposed to remove 50,000 tonnes of soil from an area representing 2/3 of the critical habitat of the Burnt Pine herd, the West Moberly objected.  They pointed out that a recovery plan had not been completed for the threatened caribou herds (despite a promise to do so by June 5, 2007), and that there had been no assessment of the cumulative impacts of development in the region on the herd.

WMFN.jpgThe case went to court on February 1st, and Justice Williamson heard almost a week’s worth of evidence and argument about the impacts of the proposed mine on the caribou and whether the Crown had a duty to accommodate the West Moberly First Nation.  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.

In response to Ministry claims that the cumulative impacts of development on the herd were “beyond the scope of the assessment”, the judge wrote that the “honour of the Crown is not satisfied” if the government officials consulting the West Moberly say that “the necessary assessment of … [the impacts of development on] treaty rights is beyond the scope of their authority.”

While the judge declined to set aside the mines permits entirely, he suspended them, and ordered that within 90 days the provincial government should develop a plan to address the West Moberly’s concerns about the Caribou herd, and that:

This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd.

When I spoke to Chief Roland Willson about the win he said:

We’re ecstatic about the decision, but it’s sad that we had to go to court to get them to uphold their promises to protect the caribou.  If they’d done what they promised … and put recovery plans in place we wouldn’t have been in court. 

As we noted above, this case represents what 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.  The provincial government now knows that if it fails to develop meaningful recovery plans for a species at risk that are of cultural importance to a First Nation, it risks court challenges to subsequent development that affects that species.  This will create a powerful incentive to get recovery plans in place in other places and for other species. 

Congratulations to the Chief Willson and the Council of the West Moberly First Nation on this precedent-setting win.  West Coast Environmental Law is delighted to have been able to support this case through our Environmental Dispute Resolution Fund and it was a pleasure to meet you all when you were down in Victoria for the court case.  It’s an even greater pleasure to know that your hard work will result in the protection of the Burnt Pine herd, and hopefully other herds and species that are at risk. 

The Judge’s complete reasons will presumably be uploaded to the BC Supreme Court website shortly.  At that time we will link to those reasons.  In the meantime, however, we will upload a copy of the decision to our website for those interested. 

Related Post: Just 11 Caribou Left