There was an interesting decision relating to treaty rights and consultation, which came out of the British Columbia Supreme Court recently.
The West Moberly First Nations sought a judicial review of the British Columbia government’s decision to allow mining activity (an “advanced exploration program”) on land that is subject to Treaty No. 8 (one of Canada’s numbered treaties with Indigenous groups). Of specific relevance to this case is the guarantee of traditional caribou hunting rights contained in Treaty No. 8. The West Moberly nations were particularly concerned that the exploration program and the associated clearing of forest in an area of caribou habitat would have a harmful effect on the caribou herd in that area. They argued that, in making the decision to allow the mining activity, the Crown had failed to consult adequately with respect to their hunting rights and had ultimately failed to reasonably accommodate the rights.
The Crown accepted it had a duty to consult with the West Moberly First Nations but submitted that it had done so and had, as a consequence, taken measures to reasonably accommodate the treaty-protected hunting rights. One line of argument pursued by the Crown was that the guarantee in Treaty No. 8 is a general right to hunt for meat in the area covered by that treaty, not a specific right to hunt caribou in the affected area. The court, however, found that ‘It is not an accommodation to say “hunt elsewhere”.’
Furthermore, a range of measures that were proposed to minimize or mitigate the effect on the caribou habitat were found to be inadequate consultation because they did not comprise part of a wider plan for rehabilitation and recovery of woodland caribou numbers. The absence of a recovery plan had been a long-standing concern of the West Moberly nations and was suggested by them as a reasonable accommodation and the judgment notes that the government’s failure to put in place an active plan for protection and rehabilitation of this caribou herd was a failure to accommodate reasonably.
In this case, Justice Williamson determined that, rather than quash the decision to permit the exploration program, an appropriate balancing of rights would be achieved by suspending the effect of the instruments that would permit the exploration program and associated habitat interference for 90 days “to permit and to mandate a proper accommodation of West Moberly’s concerns”. His judgment went on to note that “This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd.”
This decision may yet be appealed, though it is nevertheless being cautiously welcomed as, potentially, a significant win for the First Nations involved and for the effective protection of treaty rights more generally.