West Moberly – Supreme Court of Canada denied leave to appeal

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The West Moberly decision, an important BC Court of appeal decision affirming Aboriginal consultation requirements, will stand, now that the Supreme Court of Canada has denied British Columbia leave to appeal. This is good news for First Nations concerned about addressing cumulative effects in the Aboriginal consultation process, and provides clarification for the Crown about when consultation obligations are triggered (i.e. they can be triggered even without a specific statutory decision).

British Columbia’s Court of Appeal ruled in May 2011 that the province had not fulfilled its constitutional obligation to consult with the West Moberly First Nations about how allowing sampling – with a view to allowing coal mining – would affect treaty rights to hunt caribou in the First Nations’ traditional territory. The province sought leave to appeal the Court of Appeal’s split decision (two concurring judgements and one dissent) last Fall.

The case confirmed some important principles about how Aboriginal consultation needs to be done. The Supreme Court’s dismissal of the province’s application for leave to appeal signals that the country’s highest court considers those findings to be sound. The principles established in the decisions can thus be used as a persuasive precedent by First Nations in future consultation litigation and negotiations.

Some of the highlights of the B.C. Court of Appeal’s decision included:

Consultation is not just about First Nations ‘blowing off steam’

The B.C. Court of Appeal ruled that, in order to fulfill meaningful consultation, the Crown had to tell the First Nations that their position had been fully considered, and provide persuasive reasons why the course of action proposed by the First Nation was not necessary, impractical or unreasonable.[1] The Court found that B.C.’s approach to consultation was flawed:

It based its concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice. However, to commence consultation on that basis does not recognize the full range of possible outcomes and amounts to nothing more than an opportunity for the First Nations “to blow off steam”[2]

The Duty to Consult is ‘Upstream’ of Other Legal Obligations

A question which often arises in Aboriginal consultation cases is whether a specific statutory decision is needed in order to trigger the duty to consult. The West Moberly decision confirms that government officials are not limited by statutory mandate when it comes to fulfilling the duty to consult. Based on the well-established principle that statutory decision makers are required to respect legal and constitutional limits, the Chief Justice reiterated that “the Crown’s duty to consult lies upstream of the statutory mandate of decision makers.”[3]

This means that government representatives cannot come to the table with First Nations and say that they do not have the authority or the mandate to actually deal with concerns raised by First Nations in the consultation process. Nor can the Crown delegate its duty to consult and accommodate to parties that don’t have the decision-making power to deal with impacts on First Nations. (The Crown can, of course, delegate aspects of the consultation process, but the final responsibility to address Aboriginal concerns rests with the Crown).

Cumulative Impacts Must be Addressed

The West Moberly decision set an important precedent confirming the need to address cumulative effects of a number of projects on treaty and Aboriginal rights. In the West Moberly case, the issue was the cumulative impact of various development projects in the region on the shrinking caribou population.

B.C. and Alberta, who intervened in the appeal, tried to rely on the Supreme Court of Canada’s decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council[4] for the principle that the only matter to be considered in consultation was the specific permit for sampling – not cumulative impacts of past development nor the subsequent mining that would take place. The B.C. Court of Appeal rejected this argument, setting out a proper interpretation of the Supreme Court’s ruling. The Court of Appeal found that Carrier Sekani does not stand for the proposition that decisions and activities which occurred before the current decision are irrelevant. The Court found that, in the West Moberly case, “the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners’ treaty right to hunt.”[5] The Court also found that nothing in the Carrier Sekani decision says that future impacts should be disregarded. In the West Moberly decision, the impact of full blown mining (which was the next step after the sampling process being contested) was within the scope of the duty to consult about impacts on treaty rights.[6]

Consultation is about the Protection of Aboriginal and Treaty Rights

West Moberly makes is clear that consultation must begin with the premise that the First Nations are entitled to what they have been granted by the treaty. In Treaty 8, the First Nations had the right to hunt as existed before the treaty – the treaty protected that right. While specific areas and locations of hunting were not set out in the treaty, the Chief Justice of the B.C. Court of Appeal found that the treaty provided a guarantee of continuity of traditional patterns of activity and occupation. This meant, in the West Moberly case, that the treaty right to hunt caribou is specific to the location and species that were the subject of harvesting patterns before the treaty.[7]

By Cathy Guirguis