The clogged courts in British Columbia suggest that the government is not doing a good job of consulting and accommodating First Nations over resource projects on aboriginal land.
Six bands have launched 11 court challenges against the Enbridge Northern Gateway pipeline alone and bands are also bringing actions against BC Hydro's Site C dam, the Trans Mountain Expansion Project and several proposed mines.
Failure of government to adequately consult is a common theme in all those cases.
But a B.C. Supreme Court decision that was handed down earlier this year, to little media attention, shows that government does know how to get this complex process right – at least sometimes.
The case of West Moberly First Nation and The Chief Inspector of Mines involved a band challenging the province over a proposed coal project in an area that was spiritually, culturally and environmentally important to the native community.
The Canadian Kailuan Dehua Mines Co. Ltd. was seeking a permit to undertake test drilling as it sounded out the extent of a massive coal deposit. After test drilling, the company wanted to extract 100,000 tonnes of coal and then, if it could pass a full environmental assessment, it hoped to go into full production.
In 2005, CKD applied for coal licences in the area and the province referred the applications to both the West Moberly First Nation and another band, opening a dialogue that would go on for years as the review process slowly unfolded.
An environmental study was done concerning an endangered caribou herd in the area, archeological surveys were undertaken and the band started a cultural-use study.
From the outset, the province emphasized the importance of aboriginal rights and concerns, stating in the permit: "The licence is located in an area used by the Treaty 8 members for the traditional activities including, but not limited to, hunting, fishing and gather[ing] of plants and berries for food, medicinal, special cultural and spiritual purposes. The licensee must also be aware of, and take steps to mitigate any impact on, grave sites, historical cabins and watershed values."
As the process unfolded, the dialogue between the West Moberly band, CKD and the province became extensive. But in his decision, B.C. Supreme Court Justice George Macintosh noted that volume of correspondence alone is not enough.
"A reviewing court must look beyond what can appear, frankly, as the sometimes self-serving correspondence between the parties, written at least in part, one suspects, to 'paper' the file with a view to a subsequent court challenge," he wrote.
When Justice Macintosh looked deeper, he became convinced the province had in fact sought to have a meaningful dialogue with the West Moberly First Nation, keeping the band informed at each stage of development, from licensing, through to exploratory drilling and geotechnical drilling.
In 2013, when the project reached the bulk-sampling stage, the band challenged the development in court, stating it should not be allowed to go ahead until the West Moberly had completed the cultural-use study it had begun.
But Justice Macintosh disagreed, in part because the band had been slow in doing the study, and in part because it had previously done cultural research that could be used as reference.
"Timeliness has to be an element in the administrative process and all sides need to work at the consultation process in a meaningful manner," he wrote.
"One can always say that a further study could have been prepared, a further meeting could have been held, or a further submission could have been received. That will always be true."
Justice Macintosh ruled the bulk sampling could go ahead, because the government had behaved honourably and had adequately consulted with the band. The West Moberly First Nation felt otherwise – but that wasn't enough to stop the project.
There are concerns in B.C. that the need to consult and accommodate First Nations endlessly will bring all resource projects to a halt.
But the West Moberly versus The Chief Inspector of Mines shows that's not the case.
If the government starts consultation early in the process, is responsive to the concerns of a band, and keeps all parties informed at each step along the way, projects can and will proceed.
Mark Hume