BC Supreme Court Halts Exploration Project Pending Caribou Accommodation

In West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (the “First Coal Decision”) West Moberly First Nation successfully challenged the issuance of three Crown permits to First Coal related to bulk sampling of coal, advanced exploration drilling, and timber cutting near Chetwynd on Treaty 8 lands.

Williamson J. held that although the Crown undertook consultation with respect to these decisions, the consultation was not sufficiently meaningful, and the accommodation put in place was not reasonable, for example, "The prime concern of the West Moberly is the real potential for the extirpation of the Burnt Pine caribou herd. I conclude that at least since June of 2009, when the West Moberly presented a detailed report of the danger to that herd and its relationship to their treaty protected right to hunt, 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."

As for remedy, the Court ordered specific accommodation with respect to Burnt Pine caribou:  “A pragmatic and reasonable step is to stay the effect of the issuing of the amendment of September 14, 2009 permitting the Advanced Exploration Program, and to suspend the effect of the licence to cut, for a determined period to permit and to mandate a proper accommodation of West Moberly’s concerns with respect to the Burnt Pine herd. This accommodation should be the expeditious implementation of a reasonable, active, program for the protection and augmentation of the Burnt Pine herd. Given the research and information available, it would appear that such a program could be in place within a period of months.”


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