Courts Weigh In On Caribou

It is now well established that the Crown has an obligation to act honourably in all of its dealings with Aboriginal peoples. Recent decisions have considered this obligation in contexts where the Crown has not meaningfully considered Aboriginal and treaty rights in decisions affecting caribou herds relied on by Aboriginal peoples for subsistence and spiritual purposes.

In Adam v. Minister of Environment (Canada),[1] Federal Federal Justice Paul Crampton considered an application by three First Nations and several environmental groups to compel the Minister of Environment to act to protect threatened woodland caribou in northern Alberta under the federal Species at Risk Act.

In this case, the Crown argued that Aboriginal rights were at best, a secondary consideration, stating that:

“[f]actors such as the potential impact of the decline of the boreal caribou on the applicants’ Treaty Rights and the Crown’s obligation to act honourably in all of its dealings with Aboriginal peoples are not relevant in considering whether or not the species’ survival or recovery is imminently threatened.” (para 31)

The Court rejected the Crown’s argument that the honour of the Crown is confined only to the consideration of actions by the government, stating “the Minister should not confine his consideration of the honour of the Crown to an assessment of whether any active course of conduct may negatively affect treaty rights of the First Nations….such an approach would present an impoverished view of the honour of the Crown. A broader view is required to be taken.”

This case reaches a similar result to the BC Court of Appeals in West Moberly First Nations v. British Columbia (Chief Inspector of Mines)[2], in which the Crown appealed a stay obtained by the First Nation on key permits required to advance a coal mining project in threatened caribou range. The majority upheld the stay, concurring with the court below that a statutory decision maker is required to take full account of potential impacts on Aboriginal and treaty rights, even where such considerations go outside of a particular departmental mandate or a particular project.

These cases suggest that the honour of the Crown includes a positive obligation to consider the potential consequences of resource depletion on Aboriginal livelihood rights in a broader context. Such an obligation requires the Crown to adopt proactive policies intended to secure Aboriginal livelihoods in perpetuity, instead of allowing such rights be whittled away through a succession of incremental infringements arising from isolated permitting decisions.

Accommodating the rights and interests of Aboriginal people in maintaining traditional livelihoods while benefiting from resource development may be best accomplished through proactive planning and policies that require Crown decision-makers to address Aboriginal rights as a priority, instead of as an afterthought.

By Larry Innes

[1] 2011 FC 962

[2] 2011 BCCA 247