On February 23, 2012, the Supreme Court of Canada denied leave to appeal the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines). West Moberly holds that historical context, including the cumulative impacts of past activities, is relevant when determining the scope of consultation required in a given case. It also suggests that potential impacts of future events, such as a full scale mining operation, may be relevant to the scope of consultation required, even if the Crown action sought is limited to the authorization of exploration activities. Given that the Supreme Court has declined leave to appeal, these issues are likely to remain uncertain for the foreseeable future.
The British Columbia Court of Appeal’s Decision
The Court of Appeal upheld an Order of a chambers judge declaring the Crown to be in breach of its duties to consult and accommodate the West Moberly First Nations concerning permits granted to First Coal Corporation in connection with an advanced exploration program. The West Moberly First Nations argued that proper consultation was not carried out with respect to their Treaty 8 right to hunt caribou, and without adequate provision for the protection and restoration of the caribou herd at issue. The Court of Appeal’s decision primarily focused on whether the chambers judge erred in:
interpreting the Treaty 8 right to hunt as a species-specific right; and
considering the cumulative impacts of past events which led to the depletion of the caribou herd and future events, namely the impact of a full mining operation, when determining the scope of the duty to consult.
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