Original language


Date of text
Type of court
National - higher court
Court name
Court of Appeal
Seat of court
Reference number
2011 BCCA 247
Permits, Land Use, Wildlife, Remedies, Constitutional, Forests, Licences, Property, Evidence, Jurisdiction
Free tags
Wild species & ecosystems
Legal questions
Land & soil
Finch, Garson, Hinkson.
Appeal by the province from an order declaring it in breach of its duties to consult and accommodate West Moberly First Nations concerning decisions made by government officials at the request of First Coal. Two of the decisions amended existing permits to allow First Coal to obtain a 50,000 tonne bulk sample of coal and to engage in a 173-drillhole, five-trench Advanced Exploration Program. The third decision permitted First Coal to cut and clear up to 41hectares of woodlands to facilitate the Advanced Exploration Program. First Coal's proposed exploration activities were located 50 km from the Moberly Lake Reserve, within what the First Nations considered a traditional hunting area. First Coal had previously been authorized to extract coal using a road passing through important winter caribou habitat. It sought to amend its permit to enable it to test a new technology for extracting coal. When First Coal became aware of the First Nations' opposition to its sampling and exploration projects in 2008, it began developing plans to mitigate harm from the project and to monitor its effects on caribou. Ultimately, it proposed to reduce its bulk sample permit and to cease using the road. It provided expert evidence that its operations could harm the caribou herd. It was granted the amendment nonetheless, the province finding its plans to mitigate harm and to monitor the caribou adequate. A judge found the province failed to accommodate the First Nations' concerns reasonably, given that no concrete plan was established for the protection and rehabilitation of the caribou herd. The judge found the First Nations' concerns were not fully considered, attributing this to the province's failure to act honourably in delegating its duty to consult and accommodate to officials who lacked authority to adequately address the First Nations' concerns. He found the First Nations has a meaningful right to hunt caribou in the area affected by First Coal's operations. Appeal is dismissed. The province's officials were bound to consult any resources necessary to make a properly informed decision on First Coal's amendment applications. These resources were not limited to First Coal's experts. The officials were bound to consider the treaty rights of the First Nations. The province failed to provide meaningful consultation to the First Nations in failing to consider the impact of First Coal's proposed future operations, not just the proposed sampling. Given that the First Nations historically hunted caribou, First Coal's proposed operations had the potential to adversely affect their treaty hunting rights. The judge did not err in considering the specific location and species of the First Nations' hunting practices. The province failed to address how the First Nations' concerns had been addressed by First Coal's plan to mitigate harm. It erred in proceeding on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice. It erred in treating the First Nations' right to hunt as inferior to the Crown's right to take up land for mining.