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The Case: West Moberly First Nations v. British Columbia

West Coast Environmental Law's 1st Twitter Moot - held on Tuesday, February 21st - considered an appeal from the BC Court of Appeal decision in West Moberly First Nations v. British Columbia to the Supreme Court of Twitter. On Wednesday (May 25th), the BC Court of Appeal suspended a permit allowing First Coal Corporation to explore for coal in the habitat of a threatened caribou herd, upholding a decision of the BC Supreme Court that the government had not adequately consulted the West Moberly First Nations on protecting the Burnt Pine caribou herd.  Chief Roland Willson, of the West Moberly First Nations, reacting to the decision, said:

Caribou have been a big part of our culture and diet for countless generations. Our traditional hunting practices are our heritage. This judgment supports our efforts to protect this heritage for future generations. … The court has sent a clear message that BC must take proactive steps to protect the integrity of our Treaty rights. Now that the court has affirmed the government's duty, we look forward to working cooperatively in the coming weeks and months to do what it takes to save this species from extinction.

The case, which was funded through West Coast Environmental Law's Environmental Dispute Resolution Fund, is precedent-setting, confirming that the government of British Columbia has an obligation to ensure that incremental intrusions on the habitat of an at-risk-species do not, over time, deprive a First Nation of its Treaty Rights. 

The Parties and Intervenors

The Teams in the Moot represented:

  • The Province of British Columbia (Appellant) – The Government of British Columbia has been pressing for increased mining in the province, to promote economic growth.  At the BC Court of Appeal, the Province argued that the West Moberly First Nations' Treaty Right to hunt did not amount to a right to hunt a specific herd of caribou, and that other animal populations were available to hunt.  It also argued that it is not required to address the impacts of all previous development on caribou habitat when considering permits for coal mining exploration. 
  • First Coal Corporation (Appellant) – First Coal Corporation is hoping to develop a coal mine in the winter range of the Burnt Pine Caribou herd.  However, to-date it has merely been engaged in exploration.  The company has attempted, to the extent possible, to address the harm to the herd through using less invasive mining techniques and to engage with the West Moberly First Nations. 
  • West Moberly First Nations (Respondent) – The West Moberly First Nations are signatories to Treaty 8, which guarantees them the right to hunt as formerly.  However, past development has devastated the caribou populations in the region, to the point that the West Moberly have voluntarily stopped hunting caribou – an animal which is central to their rights and culture.  When First Coal Corporation applied for mining exploration rights in the winter range of the Burnt Pine Caribou herd, the West Moberly strenuously objected, but the province of British Columbia insisted on focusing on mitigating the damage of this particular mining project, and refused to address the ongoing threats to this herd (and others in the region).  The West Moberly First Nations argued below that their right to hunt included a right to hunt caribou, and that proceeding with mining activity without a plan in place to guide the recovery of the Burnt Pine herd would compromise that right. 
  • Treaty 8 First Nations of Alberta (Intervenor) – Treaty 8 was originally signed by First Nations in Northeast Alberta, and subsequently extended over the provincial border into British Columbia.  The original signatories clearly have an interest in the interpretation of the Treaty and their Treaty Rights, and the Treaty 8 First Nations of Alberta intervened at the BC Court of Appeal in support of the West Moberly First Nations and the broad interpretation of their rights adopted by the BC Supreme Court. 

 

The story to-date

The West Moberly First Nations’ court case focussed on mining exploration being carried out by First Coal Corporation in the habitat of the Burnt Pine Caribou Herd.  As we reported when the case was first launched, the government’s own experts cautioned against the impact on the Burnt Pine herd, which previous development has reduced to 11 members.  Dr. Dale Seip, a wildlife habitat ecologist with the Ministry of Forests and Range stated:

…[T]he program will still destroy or compromise substantial amounts of core winter and summer habitat for a small Threatened caribou herd.  It will also compromise previous management actions by the Ministry of Forests and Range to protect habitat for this caribou herd.  … If the government intends to conserve or recover the Burnt Pine caribou herd, habitat conditions need to be maintained or improved.  Allowing additional habitat destruction is incompatible with efforts to recover the population.

Despite these concerns, the Ministry of Energy, Mines and Petroleum Resources approved the exploration permit and associated clearing permits in September, 2009.  The West Moberly First Nations tried to negotiate, but ultimately challenged the permits in February 2010. 

At the BC Supreme Court, the Honourable Mr. Justice Williamson ruled in favour of the West Moberly First Nations in March 2010, writing:

… The prime concern of the West Moberly is the real potential for the extirpation of the Burnt Pine caribou herd.  I conclude that … the Crown’s failure to put in place an active plan for the protection and rehabilitation of the Burnt Pine herd is a failure to accommodate reasonably.

The Province and First Coal Corporation appealed, and a majority of the three judges of the BC Court of Appeal, in a decision delivered on May 25th, 2011, upheld most of the findings of the trial judge.  While the Court of Appeal overturned an order requiring the province to develop a recovery plan for the Burnt Pine caribou herd, the majority of the judges suspended the exploration permits pending consultations with the West Moberly on how to protect the herd.  The judges cautioned the province not to assume that coal mining was more important than addressing the West Moberly First Nations’ concerns about its impacts on the Burnt Pine herd:

Effectively, MEMPR regarded the petitioners’ Treaty 8 right to hunt as subject to, or inferior to, the Crown’s right to take up land for mining or other purposes. There are at least two problems with this approach. First, it is inconsistent with what First Nations peoples were told when the Treaty was signed or adhered to. They were given to understand that they would be as free to make their livelihood by hunting and fishing after the Treaty as before, and that the Treaty would not lead to “forced interference with their mode of life”. Second, the concept of mining, as understood by the treaty makers would never have included the possibility that areas of important ungulate habitat would be destroyed by road building, excavations, trenching, the transport of heavy equipment and excavated materials, and the installation of an “Addcar system”.

For more information about the West Moberly First Nations Case, read the BC Court of Appeal or BC Supreme Court judgements, or the Environmental Law Alerts that we have written on the case

[Update 24 January 2012: Two new documents describing the case and the Twitter Moot were released:

[Update 15 February 2012: Each Team filed its Factum (written argument) for the Moot: