Caribou - Canada's Spotted Owl?

Woodland caribou (and their habitat) are quickly becoming a critical environmental challenge for mining projects in northeastern British Columbia and northern Canada, generally.

Two recent decisions illustrate the impact that woodland caribou may have on future developments: West Moberly First Nations v. British Columbia (Chief Inspector of Mines) (West Moberly), 2011 BCCA 247 and Adam v. Canada (Environment) (Adam), 2011 FC 962. The West Moberly case dealt with impacts from a proposed exploration program on a small herd of woodland caribou from the Southern Mountain population in northeastern British Columbia. The Adam decision dealt with the general viability of seven herds of woodland caribou from the boreal population in northern Alberta. These cases are summarized on pages 5 and 6.

West Moberly

In West Moberly, the British Columbia Court of Appeal upheld a lower court finding that the Province of British Columbia had breached its duty to consult the West Moberly First Nations in the course of issuing approvals for a bulk sampling1 and advanced exploration program2 on a mining project operated by First Coal Corporation in northeastern British Columbia. The Court considered the impact of the proposed exploration program on a small herd of woodland caribou from the Southern Mountain population, consisting of only 11 members at the time of the hearing, and the corresponding impact on the West Moberly First Nations' treaty right to hunt.

The decision provides a stark example of the extra level of regulatory and legal scrutiny that can be brought to bear on a proposed activity that may have an impact on even small numbers of caribou and their habitat. The decision also highlights the degree to which courts are willing to referee and insert themselves into the Crown's consultation processes with First Nations in respect of such matters.

The Province has applied to the Supreme Court of Canada for leave to appeal the West Moberly decision and the decision to grant leave is pending.

With this case pending before the Court, it is likely that development projects in northeastern British Columbia that may impact on woodland caribou or their habitat, will experience regulatory delays. This could be the result of healthy regulatory caution or the result of unwarranted regulatory paralysis. Leadership from the British Columbia government is needed in the form of a rational management and recovery program that can fill the policy gap that currently...