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Court dismisses McLeod Lake Indian Band appeal

McLeod Lake Indian Band had been seeking to be respondent in judicial review from West Moberly First Nations

The McLeod Lake Indian Band (MLIB) will remain shut out of a legal action West Moberly First Nations (WMFN) has brought against the provincial government, after the B.C. Court of Appeal upheld a lower court decision on the matter.

WMFN is challenging the adequacy of consultation undertaken by the province with respect to proposed forestry activities within its claimed traditional territory. MLIB had been seeking to be included as a respondent arguing that the proceeding may adversely affect its exercise of treaty rights.

In a Dec. 18, 2023 decision, B.C. Supreme Court Justice Warren Milman rejected MLIB's request and the band subsequently filed an appeal

MLIB had submitted the judge erred in providing inadequate reasons and in finding the proceeding would not affect MLIB’s direct interests.

But in a decision issued May 9, the BCCA found otherwise. 

"The impacts alleged by MLIB are speculative and indirect," reads a summary of the finding by a three-justice panel  "While judicial review is an appropriate forum for determining the adequacy of consultation with First Nations, it is not a forum for resolving disputes about the nature and scope of Aboriginal rights, including competing claims between First Nations. Though succinct, the judge’s reasons clearly affirmed this well-established principle. MLIB has failed to demonstrate any reversible error."

Through a petition filed Oct. 23, 2023, WFMN is seeking a judicial review of the province's consultation over activities proposed by Canadian Forest Products Ltd in the Treaty 8 area of Northeastern B.C. as well as the province’s decision to issue a cutting permit and road permit to the company.

WMFN says the activities are located in an area referred to as “Chuu Xaadeslii” which it describes as “a historically and culturally important region" for its members.

Chuu Xaadeslii means “Where the Water Starts” and includes the Anzac and Table Rivers, WMFN says in the petition.

"Chuu Xaadeslii has been significantly impacted by a range of industrial activities, including forestry, mining, and oil and gas development," it adds.

WMFN is questioning the adequacy of the consultation and is seeking a number of orders, including a declaration that it is entitled “to be consulted by British Columbia at the deep end of the constitutional spectrum with respect to the impacts to West Moberly Treaty Rights.” 

WMFN's petition remains before the court.