Continued Challenges with Respect to the Scope of the Duty to Consult and Accommodate First Nations

May 27, 2011

The British Columbia Court of Appeal has released its decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247.  The West Moberly appeal provided an opportunity for the Court to clarify the scope of the duty to consult and accommodate First Nations in light of the Supreme Court of Canada's recent decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, and in particular, whether the duty to consult includes a consideration of the cumulative effects of "past wrongs" and the impact of future developments.  In dismissing the appeal, the Court rendered three separate decisions, creating potential uncertainty around the role cumulative effects plays in the duty to consult.

Background

The appeal involved decisions made by officials in the British Columbia Ministry of Energy, Mines and Petroleum Resources (“MEMPR”), which amended existing permits to allow First Coal Corporation (“First Coal”) to obtain a 50,000 tonne bulk sample of coal, and to engage in a 173 drill hole, five trench Advanced Exploration Program (the "Program").

The evidence before the Court was that since about the 1970s, the West Moberly First Nation ("WMFN") elders had imposed a ban on their people's hunting of caribou from the Burnt Pine herd due to diminishing numbers of the herd, which was said to now consist of 11 animals. The Program would take place within the WMFN's preferred traditional hunting ground, and specifically, would affect important winter caribou habitat.  In this case, the WMFN took the position that First Coal's application should be rejected, their proposed mining activities relocated to another area where the habitat for the caribou would not be affected, and a plan should be put in place for the recovery of the Burnt Pine herd.

First Coal developed plans to mitigate harm from the Program and to monitor its effects upon the caribou through the Caribou Mitigation and Monitoring Plan ("CMMP").  The CMMP provided information and opinion on the potential effects of the Program, background information on the caribou herd and its seasonal habitats, and addressed the potential impacts of the Program on direct habitat loss, indirect habitat loss, and habitat fragmentation effects.  It also provided advice on potential mitigation measures, and a plan for monitoring the effects of the Program on the caribou herd.

The MEMPR proceeded with consultation with respect to the issue of impacts on the caribou “towards the deeper end of the consultation spectrum”.  The MEMPR engaged with the WMFN in discussions on the proposed project for over four years.  The result of such efforts was the implementation of certain mitigation measures, including the CMMP, which also established the Burnt-Pine Caribou Task Force for the purpose of monitoring results in the context of past and ongoing research on the caribou herd, and to discuss ways in which the recovery of the population could be supported.  The CMMP was provided to the WMFN for comment and was subject to a number of revisions.

The learned chambers judge held that the treaty protected right at issue was the right to hunt the Burnt Pine caribou herd, and that the consultation provided was unreasonable.  He also held that the Crown had failed to accommodate reasonably by not putting in place an active plan for the protection and rehabilitation of the caribou herd, and provided a direction for specific accommodation reflecting such a plan.  The Province appealed.

The Scope of the Duty to Consult

The Majority

Among the issues on Appeal, was whether the duty to consult includes consideration of past wrongs, cumulative effects, and future development on the WMFN's right to hunt caribou, specifically from the Burnt Pine herd.  The majority, consisting of Chief Justice Finch and Justice Hinkson, adopted a broad interpretation of the duty to consult, holding that the duty must include a consideration of "cumulative effects" extending beyond the consequences of the permits at issue.

The Chief Justice held that given the Program would have an adverse impact on the WMFN's treaty right to hunt, considering the historical context and the current state of the Burnt Pine herd is essential to a proper understanding of the seriousness of the potential impacts on that right.  Thus, to the extent that the chambers judge considered future impacts, beyond the immediate consequences of the exploration permits, as coming within the scope of the duty to consult, he committed no error.  To the extent that the MEMPR failed to consider the impact of a full mining operation in the area of concern, even though First Coal had not applied to undertake a full mining operation, MEMPR failed to provide meaningful consultation. 

Further, in considering whether the consultation undertaken in this case was reasonable, the Chief Justice and Justice Hinkson effectively assumed that the MEMPR did not consider the WMFN's recommendations with respect to lessening the impacts on their right to hunt caribou in the affected area.  The majority held that for the consultation process to be reasonable, the MEMPR would have to provide an explanation to the WMFN that, not only had their position been fully considered, but that there were persuasive reasons why the course of action they proposed was either not necessary, was impractical, or was otherwise unreasonable. 

In concluding that the MEMPR did not meet this test, the majority found, despite evidence of extensive consultation occurring over a four year period, that the MEMPR accepted First Coal's CMMP as a satisfactory response to the WMFN's position, without explanation as to why that position was rejected, and did not address why the WMFN's position was unnecessary, impractical, or otherwise unreasonable.  Rather, the CMMP proceeded on the basis that the Program should go forward, and proposed measures to minimize or mitigate any adverse effects and to discuss ways in which First Coal can assist in recovery of the caribou population.

The Dissent

In her dissenting decision, Justice Garson took a narrower approach to the duty to consult, holding that the duty to consult encompassed the potential adverse impact of the permits themselves, and not the broader impact of a full mining operation, and should focus on the right to hunt generally, not the Burnt Pine caribou herd specifically.  Thus, in assessing the degree to which the permits, if granted, might impact the general right to hunt, it was appropriate for the Province to have taken into account, as they did, the abundance of other ungulates, the proportion of caribou territory impacted by the contemplated permits, and the presence of other larger herds of caribou in the area.  Accordingly, Justice Garson concluded that the Province properly considered the impact of the Program on the Burnt Pine caribou herd within the broader context of the Treaty 8 right to hunt.

Justice Garson further held that the Province could not ignore the fragile threatened state of the Burnt Pine caribou herd in defining the scope and extent of consultations.  She found that, in this case, consultation proceeded on the basis that further incursions into the habitat of the caribou might result in expiration of the herd.  However, the scope and extent of the Crown's consultation obligations did not include implementing a recovery plan that did not emanate from, or was not causally related to, the permits sought.  Similarly, consideration of the impact of a possible full-scale mining operation on the herd would be the subject of a full environmental review, and was beyond the scope of the Province's mandate, as there was no application for a full mining operation before them. 

Justice Garson determined that the consultation in this case was reasonable, noting that extensive consultation occurred over a period of approximately four years.  She also held that notwithstanding the absence of an explicit explanation for the decision, it was apparent the MEMPR rejected the main accommodations requested by the WMFN, and the reasons for rejecting those accommodations were clear, namely that the accommodation measures proposed by the MEMPR were an adequate compromise.  Thus, the consultation process was directly responsive to the concerns raised by WMFN, insofar as they related to the concerns related to the permits at issue.  Significant accommodations were made to protect the existing caribou herd in light of WMFN's treaty protected right to hunt. 

The Scope of the Duty to Accommodate

Given his finding that the consultation was unreasonable, the Chief Justice found it was not necessary to decide whether the chambers judge erred in declaring a specific form of accommodation, although he did note that other courts have shown a reluctance to order specific accommodation.  He nevertheless set aside that direction to allow for the renewed consultation.

In his separate decision, Justice Hinkson disagreed with the Chief Justice on the basis for setting aside the accommodation.  Again, at issue was whether accommodation should be interpreted broadly to include a remedy for the cumulative effects of past wrongs.  Justice Hinkson concluded, based on Rio Tinto, that the potential adverse effect on an Aboriginal right must be causally linked to current Crown conduct, and not past events.  Thus, for the duty to consult to be triggered, the Crown's current proposed conduct must itself be causally linked to the potential adverse consequence affecting the Aboriginal right. 

Justice Hinkson did not understand that the duty to accommodate, as explained in Rio Tinto, obliges the Crown to accommodate the effects of prior impacts upon treaty rights.  Thus, in this case, accommodation with respect to the decimation of the caribou herd from events prior to the Program is not required vis a vis the Program; the need for rehabilitation of the herd cannot be considered as an accommodation that arises from the Program.  Rather, the protection of what remains of the caribou herd is the only appropriate matter to be considered when the accommodation of the treaty rights of the WMFN is addressed in the context of the applications before the MEMPR.  Thus, Justice Hinkson concluded that the chambers judge erred by conflating his consideration of the Crown's duty to consult with the WMFN with what he considered to be reasonable accommodation of the rights of the WMFN. 

In her dissent, Justice Garson essentially agreed with Justice Hinkson's approach to the duty to accommodate, finding that the chambers judge erred in construing the Crown's duty to consult and accommodate so broadly as to include a requirement to consider past wrongs, cumulative effects and future development, because the near expiration of the herd could not have been caused by the prospective granting of the permits at issue.  The issue of cumulative effects and future development is best left to the Province to address outside of the permits at issue in this case.

Comment

The Court of Appeal's divided decision shows there is still potential for uncertainty with respect to the scope of the duty to consult and accommodate as it relates to past wrongs, cumulative effects and future development.  The approach favoured by the Chief Justice and the chambers judge, requiring the Crown's duty to consult and accommodate to include past wrongs, cumulative effects and future development in the context of a specific permit or licence application, has potentially far reaching effects for industry.  This approach potentially confuses the scope of consultation required in any given circumstance, incorporating past impacts unrelated to the specific project at issue, and creates uncertainty surrounding how far into the past or the future such impacts must be considered. 

As such, the approach of Justices Hinkson and Garson to the scope of the duty to consult and accommodate has considerable merit, and is consistent with other judgments holding that consultation and accommodation should relate solely to the potential impacts flowing from the project or application at issue.  While past effects may be relevant, there must be a causative link between the proposed conduct and the alleged impacts in question.  Furthermore, addressing the larger issue of cumulative or regional effects on treaty rights, where it arises, may be better left to government policy and action, rather than to individual project proponents.