First Nation uses treaty right to protect caribou

The West Moberly First Nation of northeastern British Columbia is celebrating after the BC court of Appeal suspended a provincially-issued permit allowing a BC coal corporation to conduct mining exploration on its territory.
The precedent-setting court victory, announced May 24, is the first of its kind; confirming that First Nations treaty rights can be a powerful tool in requiring the province to protect threatened wildlife and their habitat.

The dispute focused on whether the provincial government had meaningfully consulted with the First Nation before approving a local mining company—First Coal Corporation [FCC] —to go in to explore areas associated with the critical habitat of the Burnt Pine caribou.

The BC Ministry of Energy and Mines approved coal exploration permits in the fall of 2009 without that meaningful consultation with the band, said Roland Willson, chief of the West Moberly First Nation.
The court ruling ordered a stay on the permits, and demanded that consultation between the First Nation, the government and FCC occur before any future activity commence on the site.

“We’re grateful to the courts and we’re thankful that they suspended the lease, [but] we didn’t want it to get this far,” Willson said, adding that the band had tried to engage in consultation prior to the legal battle.

He said talks between the parties should have commenced prior to the province issuing exploration permits.

“That would have been the prime time to make changes,” Willson said. “But I guess they didn’t feel like they needed to hear what our concerns were,” he added.
Willson said the fight to protect the caribou began when the First Nation learned that the province had allowed FCC to cut approximately 17 hectares of trees on their territory without meaningful consultation.

“We stood up immediately and said ‘What the hell?” he explained.

“It’s money,” Willson said, explaining the reasoning behind the government’s hasty actions. “They’ve dug themselves into a big hole financially and they have to develop at no cost,” he added.

“Being that [the province] lost the first court case and lost the second one, they can’t ignore anything that we have to say. They have to respond,” he said.

“They should’ve squashed the permit and never have allowed FCC to go into the cultural habitat zone,” Willson said.

“These caribou are going to be extinct. They [the government] are wiping them off the face of the earth.”
“But the province only saw the right to hunt. What we argued is that we have the right to the whole aspect of that habitat,” Willson explained.

“Caribou are important to our way of life and the caribou habitat is important to our way of life. If they destroy that, then they are not protecting treaty rights.”

“What [the province and FCC] should be doing is planning, [but] they were more interested in FCC mining than their obligation to protect the caribou,” he said.

“The caribou species have been put at risk in large part due to previous industrial development of the territory,” Willson said. “But the caribou and the historical context [of the habitat and Aboriginal treaty right] is a relevant factor to consider in the consultation process.”

“In the past, the government has been able to pretend that [the habitat] is a pristine wilderness, but First Nations have utilized and managed the habitat,” said Christopher Devlin of Devlin Gailus, a Victoria-based law firm that represented the West Moberly First Nation in the case.

“The government assured that coal exploration would happen, and they failed to give equal priority to the preservation of treaty rights and that was their big mistake,” said Devlin.

“You have to look at the historical context,” he added.
“It’s the first time that the courts have recognized the traditional seasonal round of a First Nation as part of a treaty and Aboriginal right,” said Devlin. He explained that a traditional seasonal round is a Dunne-za Nation term referring to the First Nation’s ideal hunting and gathering practices of a specific species or medicinal plant at certain times of the year.

“We’re very happy for the West Moberly First Nation,” he added.

While the West Moberly First Nation and their supporters are celebrating the win, the opposition in this battle is less than exuberant.

Douglas Smith, president and CEO of First Coal Corporation, said he is disappointed with the ruling but insists they will “have to move forward.” The company won’t be left unscathed by the lease suspension. Smith said FCC has lost more than $10 million due to the cost of unused expensive equipment held in limbo.

He said the permit would have allowed the company to explore the territory with the expensive high-tech monitoring equipment and, if the exploration was successful, the company could have possibly found a way to help make mining exploration less environmentally invasive.

FCC mining exploration has been suspended, Willson said but so too has the traditional hunting practices of his people for nearly 50 years. He said they will remain suspended until the caribou start to flourish.

“We have internally agreed that we are not going to hunt the caribou,” he said.

“We’ve had to shuffle our whole culture,” he continued, adding that the caribou hunt and medicines from their habitat were a huge part of the First Nations historic cultural practices.

“We’re losing all of that knowledge that we can’t rely on anymore because of the mismanagement of the province and resources,” he said.

But for now the victory is historic, say supporters.
“It’s the first real link between treaty and Aboriginal rights, cumulative effects, habitat management, species at risk and cultural practices integral to the experiences of those Aboriginal and treaty rights,” Willson said.

Although no official consultation dates have been set, Willson said talks between the province, FCC and West Moberly regarding the necessary plans for caribou recovery in the entire northeast region are planned.
“Caribou is a resource just as much as coal is,” Willson said. “But they value coal more.”

“They can’t make decisions willy nilly,” he continued. “They must sit down and really engage with us.”