Licences, Permits, Forests, Wildlife, Constitutional, Property, Remedies, Evidence
The West Moberly First Nations filed a petition for judicial review in Supreme Court seeking to quash three statutory decisions permitting (1) an amendment to an existing Mines Act permit to obtain a bulk sample of coal; (2) an amendment to a second Mines Act permit to conduct drilling as part of its advanced exploration program on the same lands; and, (3) a Licence to Cut. The First Nation claimed that the statutory decision makers failed to consult adequately and meaningfully and, failed to reasonably accommodate their hunting rights guaranteed by Treaty No. 8. At issue was a population of caribou in the area of the proponent's operations, which has been red-listed as threatened (near extinction) under the federal Species At Risk Act. Also, the First Nation claimed that the District Manager for the Ministry of Forests and Range improperly fettered his discretion in permitting the Licence to Cut. 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. The Judge 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”.