Decision Date:  May 31, 2011

Panel:  Alan Andison

Keywords:  Environmental Management Act – ss. 94(1)(a), 94(2); West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359; party status; preliminary application

The West Moberly First Nations (“West Moberly”) applied to be added as a Third Party, with full party status, in an appeal by Colonial Coal Corporation (“Colonial Coal”).

Colonial Coal had appealed a decision of the Regional Manager (the “Manager”), Recreational Fisheries and Wildlife Programs, Peace Region, Ministry of Environment, refusing to issue a permit that would allow Colonial Coal to use motor vehicles to build access trails in an area closed to motor vehicles under the Motor Vehicle Prohibition Regulation.  Colonial Coal intended to build approximately 9.2 kilometres of new trails and to reopen and modify 0.3 kilometres of existing trails to support its mineral exploration activities south-east of Tumbler Ridge, BC.  Some of the proposed or existing trails are located above the elevation of 1400 metres.  The Regional Manager refused to issue the permit on the grounds that the motor vehicles would be going through sensitive caribou habitat.

West Moberly applied to be added as a Third Party with full party status, on the basis that it has a direct interest in the outcome of the appeal, and in particular, the potential impacts of Colonial Coal’s permit application on caribou.

Colonial Coal opposed West Moberly’s application to be added as a party.

The Regional Manager took no position on West Moberly’s application.

The Board first considered whether West Moberly has a valid interest in participating.  The Board found that West Moberly has an interest in the subject matter of the appeal and may be impacted by the Board’s decision on the appeal; in particular, it has an interest in the health and population of the caribou herd at issue and it may be affected by an activity that negatively affects the herd.

The Board also considered whether West Moberly could be of assistance in the appeal, including whether it had relevant evidence to present, its expertise, whether there was any potential for delay or duplication as a result of its participation, and whether it had a unique perspective.

The Board found that West Moberly had, or appeared to have, relevant information on the caribou herd and on any impacts that a permit may have on its hunting and/or cultural rights.  However, the Board had two concerns with West Moberly’s participation in the appeal.  The first concern was that the information that West Moberly had about the caribou herd may be a duplication of the evidence to be presented by the Regional Manager.  The Board noted that, if the Regional Manager decided that West Moberly’s evidence would be helpful to his case, he may submit evidence from members of West Moberly.

The Board’s second concern was in relation to West Moberly’s allegation that the Crown did not consult with West Moberly about the permit application, and that it “may be necessary for the EAB to consider the Crown’s constitutional obligations towards West Moberly in the context of this permit application and Appeal.”  The Board held that, if West Moberly intends to introduce evidence and arguments regarding its right to hunt and the Crown’s duty to consult and accommodate, it would significantly expand the scope and nature of the appeal.  The Board noted that the appeal proceeding is limited to the grounds of appeal raised by Colonial Coal, and the Board held that it would not hear extensive evidence and submissions about the Crown’s duty to consult and accommodate the West Moberly.  Nor was the Board willing to hear full evidence and argument on those issues or make any final determination or findings respecting the Crown’s obligations in this case.

However, the Board noted that the Crown may have a constitutional obligation to consult and accommodate West Moberly before issuing a permit.  Since Colonial Coal sought a permit as part of its appeal, the Board decided to grant limited party status to West Moberly to make submissions respecting their rights, and the constitutional obligations that may be owed to them should Colonial Coal’s appeal be successful.  The Board ordered that those submissions would not include the opportunity to present evidence or ask questions (cross-examination).  Accordingly, the Board allowed West Moberly to participate as a Third Party on a limited basis.

Accordingly, the application for party status was granted, in part.