Willson et al. v. British Columbia et al., (2011) 306 B.C.A.C. 212 (CA)

• Judge: Finch, C.J.B.C., Garson and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 25, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 306 B.C.A.C. 212 (CA);2011 BCCA 247

Willson v. B.C. (2011), 306 B.C.A.C. 212 (CA);

    516 W.A.C. 212

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. MY.044

Chief Roland Willson on his own behalf and on behalf of the members of the West Moberly First Nations and the West Moberly First Nations (respondents/petitioners) v. Her Majesty the Queen in Right of the Province of British Columbia as represented by Al Hoffman, Chief Inspector of Mines, Victor Koyanagi, Inspector of Mines, and Dale Morgan, District Manager, Peace Forest District (appellants/respondents) and First Coal Corporation (respondent/respondent) and Treaty 8 First Nations of Alberta, Grand Council of Treaty #3, and Attorney General of Alberta (intervenors)

(CA038048; 2011 BCCA 247)

Indexed As: Willson et al. v. British Columbia et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Garson and Hinkson, JJ.A.

May 25, 2011.

Summary:

First Coal Corp., a federally incorporated company, held several provincial licences to explore for coal in an area which included the traditional elk hunting grounds of the West Moberly First Nations, Treaty 8 adherents. First Coal obtained permits (as amended) from provincial authorities, allowing it to extract 50,000 tonnes of coal (the bulk sample extraction) and allowing it to drill 173 test holes (the exploration project). The West Moberly First Nations applied for judicial review, seeking to quash the bulk sample extraction decision and the exploration project decision.

The British Columbia Supreme Court, in a decision reported [2010] B.C.T.C. Uned. 359, allowed the application, declaring that the Crown's consultation and accommodation were unreasonable (order, para. 1). Rather than quash the amended permits, the court stayed the effect of the permits for 90 days (order, para. 2) and directed that within the 90 day period, British Columbia, in consultation with the First Nations, should proceed expeditiously to put in place a reasonable, active plan for the protection and augmentation of the Burnt Pine caribou herd, taking into account the views of the First Nations as well as the reports of British Columbia's wildlife ecologists and biologists (order, para. 3). The Province of British Columbia appealed.

The British Columbia Court of Appeal, Garson, J.A., dissenting, affirmed the judge's declaration in para. 1 of the order that the Crown failed to consult adequately and meaningfully, and failed to accommodate reasonably the First Nations' hunting rights as provided by Treaty 8. The court directed that implementation of, or action under the amended bulk sampling and exploration permits, be stayed pending meaningful consultation conducted in accordance with these reasons. The court, however, set aside the accommodation directed in para. 3 of the order, and directed that the proper remedy was to remit the matter for further consultation between the parties, having regard for what the scope of the consultation ought properly to include. Garson, J.A., would have allowed the appeal and dismissed the petition.

Administrative Law - Topic 3201

Judicial review - General - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining inspectors - The First Nations claimed that the exploration activities would impact their traditional elk hunting grounds (Treaty 8), and that the Crown breached consultation and accommodation duties - An applications judge allowed the application - On appeal, at issue was whether judicial review was the appropriate procedure (i.e., to interpret Treaty rights) - The British Columbia Court of Appeal held that judicial review was appropriate - The court noted that no party took this position before the applications judge, nor did they seek to add Canada as a party - Further, the decision in Little Salmon/Carmacks First Nation v. Beckman (SCC 2010) provided that administrative law was flexible enough to give full weight to the constitutional interests of a First Nation - See paragraphs 92 to 99.

Fish and Game - Topic 804

Indian, Inuit and Métis rights - General principles - Scope of rights - General - [See third Indians, Inuit and Métis - Topic 3 ].

Fish and Game - Topic 843

Indian, Inuit and Métis rights - Right to hunt - Extent of right - [See third Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining officials (i.e., Ministry of Energy, Mines and Petroleum Resources (MEMPR)) - The First Nations alleged interference with their traditional elk hunting grounds (Treaty 8), and that the Crown breached consultation and accommodation duties - An applications judge allowed the application - British Columbia appealed, arguing that the trial judge erred in holding that the Crown failed to act honourably by delegating to ministry officials the duty to consult and accommodate, without also providing those officials with the necessary powers to consider fully, and to accommodate reasonably, the First Nations' concerns - British Columbia submitted that it was not dishonourable for a statutory decision maker to decline to address concerns that were beyond the statutory decision maker's statutory mandate - The British Columbia Court of Appeal rejected this ground of appeal - The MEMPR was not limited by its statutory mandate, so far as its duty and power to consult were concerned - See paragraphs 100 to 108.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining officials (i.e., Ministry of Energy, Mines and Petroleum Resources) - The First Nations alleged interference with their traditional elk hunting grounds (Treaty 8), and that the Crown breached consultation and accommodation duties - An applications judge allowed the application - British Columbia appealed - The exploration company, which supported British Columbia on appeal, argued that the chambers judge erred in determining the scope of the Crown's duty to consult - The appellants argued that the judge erred in considering "past wrongs", or the cumulative effect of past events, that led to the depleted population of the Burnt Pine caribou herd and, as well, in considering future events, namely the potential impact of a full mining operation, rather than simply the exploration programs authorized by the amended permits - The British Columbia Court of Appeal rejected these grounds of appeal - See paragraphs 109 to 126.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining officials - The First Nations alleged interference with their traditional elk hunting grounds (Treaty 8), and that the Crown breached consultation and accommodation duties - An applications judge allowed the application - British Columbia appealed, arguing that the applications judge erred in interpreting Treaty 8 as providing a specific right to hunt caribou in a particular area - The British Columbia Court of Appeal held that the applications judge did not err - The question to be answered was whether the proposed activity would adversely affect existing hunting rights - The evidence showed that any full mining operation would have an adverse impact on caribou in the area and consequently the First Nations' ability to hunt - Therefore, the duty to consult was engaged - See paragraphs 127 to 140.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining officials - The First Nations alleged interference with hunting rights (Treaty 8), and that the Crown breached consultation duties - An applications judge allowed the application - British Columbia appealed, arguing that the applications judge erred in holding that the consultation was not meaningful - The British Columbia Court of Appeal dismissed the appeal - The consultation process did not provide a satisfactory, reasoned explanation as to why the position of the First Nations was not accepted - The provincial officials based the concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice (i.e., that the right to hunt was subject to the Crown's right to take up land for mining or other purposes) - That approach was flawed - When the province entered into the consultation process without a full and clear understanding of what the Treaty meant, the process could not be either reasonable or meaningful - A consultation that proceeded on a misunderstanding of the Treaty, or a mischaracterization of the Treaty rights, was a consultation based on an error of law, and could not therefore be considered reasonable - See paragraphs 141 to 154.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - A First Nations applied for judicial review respecting exploration and sample extraction permits granted to a coal exploration company by British Columbia mining officials - The First Nations alleged interference with their right to hunt the Burnt Pine Caribou (Treaty 8), and that the Crown breached consultation and accommodation duties - An applications judge allowed the application and stayed the permits for 90 days - During that period, British Columbia was to consult with the First Nations and put in place a reasonable, active plan for the protection and augmentation of the Burnt Pine caribou herd, taking into account the First Nations' views and reports of two British Columbia experts (order, para. 3) - British Columbia appealed, arguing that para. 3 (the accommodation part of the order) should be set aside - The British Columbia Court of Appeal agreed that para. 3 should be set aside, and the matter remitted for further consultation between the parties, although Finch, C.J.B.C., and Hinkson, J.A., expressed differing reasons for their conclusion - See paragraphs 155 to 165 and 169 to 185.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See Administrative Law - Topic 3201 ].

Indians, Inuit and Métis - Topic 3.1

General - Judicial review of exercise of Crown's duty to Indians - [See Administrative Law - Topic 3201 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See third Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 4419

Treaties and proclamations - General - Infringement (incl. requirement of consultation) - [See third Indians, Inuit and Métis - Topic 3 ].

Cases Noticed:

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council - see Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al.

Carrier Sekani Tribal Council v. British Columbia Utilities Commission et al., [2010] 2 S.C.R. 650; 406 N.R. 333; 293 B.C.A.C. 175; 496 W.A.C. 175; 2010 SCC 43, refd to. [paras. 65, 177, 197].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [paras. 91, 194].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [paras. 94, 192].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [paras. 94, 188].

Halfway River First Nation v. British Columbia (Minister of Forests) et al. (1999), 129 B.C.A.C. 32; 210 W.A.C. 32; 64 B.C.L.R.(3d) 206; 1999 BCCA 470, refd to. [paras. 106, 202].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [paras. 130, 242].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [paras. 136, 201].

Klahoose First Nation v. Sunshine Coast Forest District (District Manager) - see Brown v. Hawrys et al.

Brown v. Hawrys et al., [2008] B.C.T.C. Uned. E73; [2009] 1 C.N.L.R. 110; 2008 BCSC 1642, refd to. [para. 193].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 215].

R. v. Gray - see R. v. Sappier (D.M.) et al.

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 216].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2010] 1 C.N.L.R. 278; 281 B.C.A.C. 88; 475 W.A.C. 88; 2009 BCCA 593, refd to. [para. 216].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 216].

R. v. Lefthand (E.E.), [2007] 4 C.N.L.R. 281; 2007 ABCA 206, refd to. [para. 217].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

William v. British Columbia et al., [2008] 1 C.N.L.R. 112; 2007 BCSC 1700, refd to. [para. 219].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 241].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 252].

Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management) et al. (2005), 209 B.C.A.C. 219; 345 W.A.C. 219; 37 B.C.L.R.(4th) 309; 2005 BCCA 128, refd to. [para. 287].

Wii'litswx v. British Columbia (Minister of Forests) et al., [2008] B.C.T.C. Uned. E52; [2009] 1 C.N.L.R. 359; 2008 BCSC 1620, refd to. [para. 287].

Counsel:

K.J. Phillips and E.K. Christie, for the appellant, Province of British Columbia;

K.E. Clark and R. Robertson, for the respondent, First Coal Corporation;

C.G. Devlin and T.H. Thielmann, for the respondent, West Moberly First Nations;

R.M. Kyle, for the intervenor, Treaty 8 First Nations of Alberta;

K.M. Brooks, for the intervenor, Grand Council of Treaty #3 and the intervenor, Attorney General of Alberta.

This appeal was heard in Vancouver, British Columbia, on January 4-6, 2011, by Finch, C.J.B.C., Garson and Hinkson, JJ.A., of the British Columbia Court of Appeal. The court rendered judgment on May 25, 2011, when the following opinions were filed:

Finch, C.J.B.C. - see paragraphs 1 to 168;

Hinkson, J.A. - see paragraphs 169 to 185;

Garson, J.A., dissenting - see paragraphs 186 to 288.