Her Majesty the Queen in Right of British Columbia as Represented by Al Hoffman, Chief Inspector of Mines, et al. v. Chief Roland Willson on his Own Behalf and on Behalf of all the Members of West Moberly First Nations and the West Moberly First Nations, et al.

(British Columbia) (Civil) (By Leave)




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Constitutional law – Aboriginal rights – Crown – Honour of Crown – Duty to consult and accommodate Aboriginal peoples prior to decisions that might adversely affect their Aboriginal rights and title claims – Did the majority of the Court of Appeal err in their characterization of Treaty 8 rights, effectively applying a “frozen in time” approach to treaty interpretation? – Did the majority of the Court of Appeal properly interpret the interplay of constitutional duty and statutory authority in determining the required scope of an on that basis the reasonableness of the Crown’s consultation process? – Did the majority of the Court of Appeal fail to adhere to the direction of this court in, Rio Tinto Alcan Inc. V. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650 in their consideration of the implications of past events in determining the reasonableness of the Crown consultation process?

In 2009, government officials from the first applicant Her Majesty the Queen in Right of British Columbia (“BC”) issued a timber licence to cut and two amendments to an existing mining permit to allow the second applicant First Coal Corporation (“FCC”) to obtain bulk coal samples and engage in exploration drilling, on land claimed by the Aboriginal respondents West Moberly First Nations (“WMFN”) as their traditional hunting grounds under Treaty 8. WMFN sought judicial review of these decisions, alleging they were made without proper consultation, and without consideration of their Treaty 8 rights and the impact on a caribou herd. The Supreme Court of British Columbia chambers judge allowed WMFN’s application for judicial review, and suspended one of the amended mining permits and the licence to cut for 90 days, ordering the Crown to implement a program during this period for caribou herd protection and restoration as an accommodation measure. A majority of the Court of Appeal for British Columbia dismissed BC’s appeal, but substituted a different remedy, ordering a stay of one of the permit amendment and the licence to cut pending meaningful consultation, and setting aside the specific accommodation measure directed by the chambers judge.

Lower Court Rulings

March 19, 2010
Supreme Court of British Columbia

09-4823, 2010 BCSC 359
Application for judicial review by respondents WMFN allowed
May 25, 2011
Court of Appeal for British Columbia (Victoria)

CA038048, 2011 BCCA 247
Appeal by applicant BC dismissed