The Supreme Court of Canada has announced that it will not hear an appeal from the British Columbia Court of Appeal's decision in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247.
West Moberly involved the potential impact of a bulk coal sampling and exploration program on the West Moberly's right to hunt, including their right to hunt the Burnt Pine caribou herd, a herd of 11 animals listed as threatened under the Species at Risk Act. In a sharply divided decision, Chief Justice Finch took a broad view of the potential impacts of the proposed activities and applied this to a species- and location-specific interpretation of West Moberly's right to hunt (e.g., if a mine were built, would this potentially affect West Moberly's right to hunt these caribou) to find that the Province had not adequately consulted West Moberly. In contrast, Justice Garson confined her analysis to the potential impacts of the specific proposed activities and applied these to a much more generally defined right to hunt, finding that the Province had adequately consulted West Moberly. Justice Hinkson did not agree with all of the Chief Justice's findings but agreed with enough of them to conclude that consultation was inadequate and that the matter should be sent back to the parties for further consultation. In sending the matter back however, the Court of Appeal was unanimous in holding that the lower court judge should not have expressly ordered the Province to put in place a recovery plan as part of its duty to consult.
The Supreme Court of Canada's decision means that an appeal from West Moberly will not be heard. While a decision to deny leave does not mean that the Court necessarily agrees with the decision below, the Court's decision will mean that the uncertainty created by the three divergent decisions will remain.
To view the Court of Appeal's decision in June 2011, please view our original Bulletin.
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