This morning Chief Roland Willson and the entire Council of the West Moberly First Nations, from Northeast BC, walked into a courtroom in Victoria to ask a judge of the BC Supreme Court to overturn permits allowing mineral exploration in the habitat of the Burnt Pine Caribou Herd. West Coast Environmental Law is supporting this landmark case through our Environmental Dispute Resolution Fund.
The cultural identity of the West Moberly is grounded in the hunting of large ungulates, and yet the Nations have been unable to hunt caribou since the 1970s, as every herd in their territory has been classified as Threatened. The Burnt Pine herd has been reduced to 11 animals.
When First Coal Corporation proposed to remove 50,000 tonnes of soil from an area representing 2/3 of the critical habitat of the Burnt Pine herd, the West Moberly objected. They pointed out that a recovery plan had not been completed for the threatened caribou herds (despite a promise to do so by June 5, 2007), and that there had been no assessment of the cumulative impacts of development in the region on the herd. Scientists with the Ministries of Environment and Forests and Range agreed. 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 case is legally significant because it represents an attempt to use aboriginal treaty rights to protect a specific threatened species. It examines, for the first time as far as we are aware, the interface between aboriginal rights and species at risk legislation. Kudos to the lawyers at Devlin Gailus for their hard work on behalf of the West Moberly and the Burnt Pine caribou.
The West Moberly First Nations are signatories to Treaty 8 – a Treaty originally signed in northern Alberta, but subsequently extended across the BC-Alberta border into Peace River country. This treaty –one of the few signed in BC – allows the provincial government and settlers the right to “take up” land for settlement and development. But at the same time, the treaty guarantees the West Moberly the right to hunt and fish as they had done before the treaty was signed.
The Supreme Court of Canada has, in earlier cases, held that Treaty 8 did not allow for the taking up of land by the province to the extent that the First Nations’ hunting would be harmed.
Since the Treaty No. 8 lands were not well suited to agriculture, the government expected little settlement in the area. The Commissioners … indicated that “it is safe to say that so long as the fur-bearing animals remain, the great bulk of the Indians will continue to hunt and to trap.” The promise that this livelihood would not be affected was repeated to all of the bands who signed the Treaty. Although it was expected that some white prospectors might stake claims in the north, this was not expected to have an impact on the Indians’ hunting rights. R. v. Badger (SCC), para. 55.
According to the West Moberly, the Ministry of Energy Mines and Petroleum resources has taken the view that the West Moberly’s right to hunt is not compromised as long as there are still animals to hunt in their territory. Thus, since there are moose and deer in the region, the Ministry feels no obligation to ensure that this particular herd of caribou are protected.
The court case will consider whether the government has a duty to the West Moberly to ensure that populations of all the species that the West Moberly used to hunt remain healthy. It will consider the relationship between Species at Risk legislation and aboriginal treaty rights. These are all crucial questions.
But the court case will focus on BC’s obligations to the West Moberly First Nation. A question that all of us should be asking is, regardless of the rights of the West Moberly, why does the BC government think it’s acceptable to push a herd of caribou to the edge of extinction? According to the Wildlife Act, all wildlife in BC is (subject, of course, to any aboriginal rights) owned by the province – presumably on behalf of the people of BC. Allowing development to the point that entire herds of caribou in a region may be wiped out does not seem like good management of our resources.
Thank you to the West Moberly for taking on the Ministry of Energy and Mines and asking tough questions. But perhaps the rest of us need to ask our provincial government some tough questions too.