"Law, Faculty of"@en . "DSpace"@en . "UBCV"@en . "Johnston, Natalie"@en . "2015-01-07T23:52:10Z"@en . "2014"@en . "Master of Laws - LLM"@en . "University of British Columbia"@en . "In recognition of Canada being a legally pluralist state, there is ample impetus from multiple players within the Canadian legal landscape for Indigenous legal traditions to be recognized, respected and considered as sources of legitimate legal authority. The need to be attentive to Aboriginal interests is becoming increasingly important in the context of government decision making regulating natural resources extraction that the constitutional duty to consult governs. However, state based decision makers must be attentive to the Indigenous legal traditions that comprise the legal systems that existed upon colonial settlement and which remain alive today. \n\nTaking the recent Caribou cases as a case study, I analyse the extent to which Dunne Za law was recognised and respected in successive administrative and judicial decision making. Several Dunne Za legal traditions were interwoven throughout the petitioners\u00E2\u0080\u0099 submissions which arguably incited the Caribou cases. Chief of these laws is the traditional seasonal round. I interpret substantive and procedural components to decision making pursuant to this land management regime for maintaining balance and order. Throughout the analysis I highlight cultural, legal and operational constraints to the ability of decision makers to consider Indigenous legal traditions. Chief of these legal impediments is the reasonableness standard of review pursuant to which decisions as to the adequacy of consultation are assessed.\n\nThe Caribou cases exhibit varying degrees of respect for Dunne Za law. The Chief Justice\u00E2\u0080\u0099s inclusive balancing approach, which considers the legal traditions that were at play as legitimate law, contrasts that of the statutory decision maker and other appellate judge, which, inter alia, devalued the petitioners\u00E2\u0080\u0099 hunting right to an interest capable of being trumped by competing economic interests. On several levels, the Caribou cases are a positive result that ought to be celebrated. However, this case study is an exception among many battles over the duty to consult that are not won. While Indigenous law has a presence in state based decision making, considerable progress must occur in the extent of respect for and consideration of Indigenous legal traditions, before parity of influence exists with common law legal traditions in state based decision-making"@en . "https://circle.library.ubc.ca/rest/handle/2429/51856?expand=metadata"@en . " Interwoven legal traditions. The extent to which state based decision makers are engaging with Indigenous legal traditions and the extent to which this is feasible: A celebration of an exceptional outcome by Natalie Johnston B.A., The University of Sydney, 2004 LL.B, The University of Sydney, 2005 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate and Postdoctoral Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2014 \u00C2\u00A9 Natalie Johnston 2014 \t \u00C2\u00A0\t \u00C2\u00A0 ii\t \u00C2\u00A0Abstract In recognition of Canada being a legally pluralist state, there is ample impetus from multiple players within the Canadian legal landscape for Indigenous legal traditions to be recognized, respected and considered as sources of legitimate legal authority. The need to be attentive to Aboriginal interests is becoming increasingly important in the context of government decision making regulating natural resources extraction that the constitutional duty to consult governs. However, state based decision makers must be attentive to the Indigenous legal traditions that comprise the legal systems that existed upon colonial settlement and which remain alive today. Taking the recent Caribou cases as a case study, I analyse the extent to which Dunne Za law was recognised and respected in successive administrative and judicial decision making. Several Dunne Za legal traditions were interwoven throughout the petitioners\u00E2\u0080\u0099 submissions which arguably incited the Caribou cases. Chief of these laws is the traditional seasonal round. I interpret substantive and procedural components to decision making pursuant to this land management regime for maintaining balance and order. Throughout the analysis I highlight cultural, legal and operational constraints to the ability of decision makers to consider Indigenous legal traditions. Chief of these legal impediments is the reasonableness standard of review pursuant to which decisions as to the adequacy of consultation are assessed. The Caribou cases exhibit varying degrees of respect for Dunne Za law. The Chief Justice\u00E2\u0080\u0099s inclusive balancing approach, which considers the legal traditions that were at play as legitimate law, contrasts that of the statutory decision maker and other appellate judge, which, inter alia, devalued the petitioners\u00E2\u0080\u0099 hunting right to an interest capable of being trumped by competing \t \u00C2\u00A0\t \u00C2\u00A0 iii\t \u00C2\u00A0economic interests. On several levels, the Caribou cases are a positive result that ought to be celebrated. However, this case study is an exception among many battles over the duty to consult that are not won. While Indigenous law has a presence in state based decision making, considerable progress must occur in the extent of respect for and consideration of Indigenous legal traditions, before parity of influence exists with common law legal traditions in state based decision-making. \t \u00C2\u00A0\t \u00C2\u00A0 iv\t \u00C2\u00A0Preface This dissertation is original, unpublished, independent work by the author, Natalie Johnston. \t \u00C2\u00A0\t \u00C2\u00A0 v\t \u00C2\u00A0Table of Contents Abstract ............................................................................................................. ii Preface ................................................................................................................ iv Table of Contents............................................................................................... v Acknowledgements ............................................................................................ viii Chapter One: Introduction............................................................................... 1 1.1 Rationales for such analysis .................................................................... 3 1.1.1 A means by which to establish legal rights ................................... 3 1.1.2 Judicial and Bar Association impetus ........................................... 5 1.1.3 Theoretical support: Legal Pluralism and the jurispathic court? .. 7 1.1.4 My entr\u00C3\u00A9e into cultural untranslatability ....................................... 9 1.1.5 The value of celebration and countering the collective memory of imperialism ................................................................................... 13 1.2 Thesis outline .......................................................................................... 17 Chapter Two: Methodological and ethical concerns with interpreting Indigenous legal traditions ............................................................................... 20 2.1 The appropriateness of this task and methodological limitations ........... 23 2.2 Translation .............................................................................................. 28 2.3 Epistemological challenges .................................................................... 35 2.3.1 Theoretical grounding ................................................................... 35 2.3.2 Identification of the researcher\u00E2\u0080\u0099s identity within the research task or situating one\u00E2\u0080\u0099s self in the research ........................................... 37 2.4 Voice .................................................................................................... 44 2.5 Reliability of sources .............................................................................. 44 Chapter Three: Indigenous legal traditions of the Dunne Za ...................... 55 3. 1 The Traditional Seasonal Round as a quasi land use planning regime ... 56 3.1.1 Dreaming or dream hunting .......................................................... 66 3.1.2 Substantive components of the Traditional Seasonal Round: the \t \u00C2\u00A0\t \u00C2\u00A0 vi\t \u00C2\u00A0 role of traditional knowledge ....................................................... 69 3.1.3 Procedural elements of Dunne Za decision making ..................... 78 3.2 The moratorium ...................................................................................... 81 3.3 The principle of respect ........................................................................... 83 3.4 Legal principles sourced in oral histories ............................................... 85 Chapter Four: State based decision makers and Indigenous legal traditions 91 4.1 \u00E2\u0080\u009CFirst instance:\u00E2\u0080\u009D administrative decision makers and the statutory decision maker ...................................................................................... 95 4.2 At trial: The Supreme Court of British Columbia .................................. 105 4.3 The Court of Appeal of British Columbia ............................................. 109 4.3.1 Submissions of the appellants: the Province of British Columbia and First Coal Corporation ........................................................... 109 4.3.2 Submissions of the Attorney General of Alberta .......................... 112 4.3.3 Submissions of the Petitioners / respondents on appeal ............... 113 4.3.4 The content of consultation issue: what was the scope of the Duty to Consult? ........................................................................... 115 4.3.5 The interpretation issue: the nature of the treaty right to hunt ...... .124 4.3.6 The adequacy of consultation ....................................................... 133 4.3.7 The accommodation issue ............................................................. 147 4.4 Evolution in the degree of engagement? Comparison with a decision 26 years prior: Blueberry River v Canada (DIA) [1987] FCJ 1005 ........................................................................... 148 4.5 The extent of engagement with the Indigenous legal traditions of the Dunne Za ................................................................................ 151 Chapter Five: The extent to which decision makers are able to engage with Indigenous legal traditions ............................................................................... 159 5.1 Cultural untranslatability: a clash of worldviews ................................... 159 5.1.1 A further symptom of cultural untranslatability: the legitimacy of law derived from oral history.................................................... 169 5.2 Technical legal impediments: at the mercy of legal ingredients ............ 173 \t \u00C2\u00A0\t \u00C2\u00A0 vii\t \u00C2\u00A0 5.3 Operational limitations ........................................................................... 196 5.3.1 Policy and economics ................................................................... 197 5.3.2 A divided Crown and impact upon the honour of the Crown ....... 202 5.4 Conclusion .............................................................................................. 204 Chapter Six: Conclusion .................................................................................. 209 Bibliography .................................................................................................... 226 \t \u00C2\u00A0\t \u00C2\u00A0 viii\t \u00C2\u00A0Acknowledgements Thank you to my supervisor Dr Douglas Harris for considering my researched ideas which were largely based on an amalgam of Australian and Canadian law, and for his tolerance in approaching the challenges which reconciling these jurisdictional differences and paradigms presented. Thank you also to Mr Michael Jackson, QC for reviewing this thesis and for inspiring me with his stories of working with Aboriginal communities in combating the challenges that over-tenuring presents. Many thanks to the following people for answering my many questions, encouraging me to think independently and to question the status quo, and for their professional and ethical guidance. The Honorable Justice R N Talbot, Professor D. P. H. Hasselman, Ms Deborah Kol. \t \u00C2\u00A0\t \u00C2\u00A0 1\t \u00C2\u00A01. Introduction Aboriginal people have always had a voice. It is the non-Aboriginal world that is learning to listen.1 The need to listen is becoming increasingly important in the context of the balancing of rights and interests involved in government decision making relating to natural resources extraction that is governed by the deliberative democratic mechanism of the constitutional duty to consult. Both the government administering the duty to consult and accommodate\u00E2\u0080\u0099s implementation in policy, and the judiciary crafting its evolution in response to the submissions of advocates, must be attentive to Aboriginal voices. For the Aboriginal peoples of Canada, it is imperative that decision makers listen to their voices for several reasons, including that the duty to consult provides the means by which \u00E2\u0080\u009CAboriginal interests\u00E2\u0080\u009D might be preserved as an interim measure pending claims resolution,2 or in a treaty context it provides the opportunity for obtaining an improved outcome for defined treaty rights.3 However, decision makers must listen not merely to \u00E2\u0080\u009CAboriginal interests,\u00E2\u0080\u009D because as the operation of the duty to consult illustrates, despite having constitutional protection, these interests may be outweighed in the decision making calculus by competing interests, particularly economic ones. As such, Aboriginal interests are not indefeasible. Rather, for reasons which I proceed to explain, decision makers must be attentive to the Indigenous legal traditions that comprise the legal systems that were in existence upon colonial settlement and which remain alive today. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A01 Dr Carli Coetze, \u00E2\u0080\u009CThey Never Wept the Men of My Race,\u00E2\u0080\u009D cited in Sophie Mc Call, First Person Plural: Aboriginal storytelling and the ethics of collaborative authorship (Vancouver: UBC Press 2011) at 45. 2 In Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 SCR 511, the Supreme Court of Canada employs the language \u00E2\u0080\u009CAboriginal interests.\u00E2\u0080\u009D 3 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, provides that Haida consultation rights extend to the treaty context.; Lawyer Ms Lee Schmidt described the duty to consult as a gift for the opportunity it provides for securing an improved outcome for Aboriginal peoples. Tom Isaac, Lee Schmidt, Erin Tully, \u00E2\u0080\u009CThe Duty to Consult\u00E2\u0080\u009D, seminar hosted by the Indigenous Law Students Society at the University of British Columbia, Faculty of Law, 21 November 2012. \t \u00C2\u00A0\t \u00C2\u00A0 2\t \u00C2\u00A0Taking a case study of the decision making that occurred with respect to the recent \u00E2\u0080\u009CCaribou cases,\u00E2\u0080\u009D namely West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 and West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (West Moberly), as the primary focus of analysis, this thesis examines the extent to which administrative and judicial decision makers recognise, respect and consider Indigenous legal traditions. The first of the Caribou cases concerned a petition for judicial review brought by Chief Wilson of the West Moberly First Nation and the West Moberly First Nation (the petitioners). The West Moberly First Nation descend from the Mountain Dunne-Za, also known as the Beaver Indians. The petitioners sought to quash three decisions of government officials that would facilitate a proponent, First Coal Corporation, obtaining a bulk sample of coal as well as pursuing an advanced exploration program in relation to an existing mineral tenure located within West Moberly traditional territory. The petitioners alleged, amongst other things, that the impugned decisions were made without proper consideration of their right to hunt caribou in the affected area as part of their traditional seasonal round, and without making adequate provision for the protection and restoration of those caribou.4 Central legal issues were the adequacy of the Crown consultation and accommodation. The petitioners succeeded in the Supreme Court of British Columbia, after which the Provincial Crown appealed to the Court of Appeal of British Columbia in the second of the caribou cases. While the majority reasoning differed from that of the trial judge, the Court of Appeal upheld the principal finding that the Crown\u00E2\u0080\u0099s consultation and accommodation had been inadequate. It held that the Crown\u00E2\u0080\u0099s inaccurate characterization of the nature and scope of the Treaty hunting right guaranteed to the petitioners in Treaty 8, infected the Crown\u00E2\u0080\u0099s assessment of the content of the duty to consult. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A04 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written Argument of the Petitioners to the Supreme Court of British Columbia) at para 2. \t \u00C2\u00A0\t \u00C2\u00A0 3\t \u00C2\u00A01.1 Rationales for such analysis Why complete this kind of work? Why is it important to analyze the extent to which decision makers who receive their authority from the state are attentive to Indigenous legal traditions? Several well-established justifications have garnered professional and academic support. There is no need to explain these at length. Rather, I am more interested in articulating my own evolved reasons for such exploration, as well as those that are perhaps less commonly discussed. Nevertheless, I commence by acknowledging the more pertinent of these well established justifications. 1.1.1 A means by which to establish legal rights From the point of view of many Aboriginal peoples of Canada, a pertinent reason for such inquiry is that the language of Delgamuukw v British Columbia [1997] 3 SCR 1010 provides that the means by which Aboriginal peoples can establish their entitlements, is by their laws. That is, Indigenous legal traditions have an important role to play in securing recognition of Aboriginal title. This point is perhaps less relevant to my case study where the West Moberly First Nation have treaty protected rights. However, it is of the utmost importance to other First Nation governments, particularly in British Columbia, with its relative dearth of treaties. In Delgamuukw, the Gitksan and Wet\u00E2\u0080\u0099suwet\u00E2\u0080\u0099en First Nations relied upon the adaawk and kungax respectively to support their claims for Aboriginal title. The Gitksan relied upon the adaawk as a component of and as proof of the existence of a Gitksan system of land tenure.5 As legal scholar \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A05 Delgamuukw v British Columbia [1997] 3 SCR 1010 at para 94. \t \u00C2\u00A0\t \u00C2\u00A0 4\t \u00C2\u00A0Val Napolean explains, the adaawk are the ancient formal collective oral histories of the house. Each house owns an adaawk that links the group to its territories and establishes the rightful owners of land and resources.6 The adaawk tells of the group\u00E2\u0080\u0099s origins and migrations to its cultural territories, of explorations and covenants established with the land, and of songs, crests and names that result from the spiritual connection between members and their land.7 The Gitksan Nation submitted that Aboriginal title may be established, at least in part, by reference to Aboriginal law. They maintained that Aboriginal title arises from and should reflect the pattern of land holdings under Aboriginal law.8 Similarly, the Wet\u00E2\u0080\u0099suwet\u00E2\u0080\u0099en introduced the kungax as being relevant to the proof of Aboriginal title.9 The Supreme Court of Canada (SCC) eventually held that Aboriginal title arose out of the relationship between the common law and pre-existing systems of Aboriginal law: \u00E2\u0080\u009Cthe source of Aboriginal title appears to be grounded both in the common law and the Aboriginal perspective on land. The latter includes, but is not limited to, their systems of law. It follows that both should be taken into account in establishing proof of occupancy.\u00E2\u0080\u009D10 The SCC reasoned thus: Aboriginal title arises from the prior occupation of Canada by Aboriginal peoples11 and this is relevant in two ways. First, the physical fact of occupation derives from the common law principle that occupation is proof of possession in law.12 Secondly, Aboriginal title is a distinct legal interest or \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A06 Val Napolean \u00E2\u0080\u009CLiving Together Gitksan Legal Reasoning as a Foundation for Consent,\u00E2\u0080\u009D in Jeremy Webber, Colin McCleod and Others, Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver: UBC Press 2010) at 45. 7 Susan Marsden, \u00E2\u0080\u009CDefending the Mouth of the Skeena: Perspectives on Tsimshian Relations\u00E2\u0080\u009D in Jerome S. Cybulski, ed., Perspectives on Northern Northwest Coast Pre History (Hull: Canadian Museum of Civilisation, 2001) 61 at 62 to 63, cited in Val Napolean \u00E2\u0080\u009CLiving Together Gitksan Legal Reasoning as a Foundation for Consent,\u00E2\u0080\u009D in Jeremy Webber, Colin McCleod and Others, Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver: UBC Press 2010), footnote 27 at 48. 8 Delgamuukw at para 147. 9 id at para 94. 10 id at para 147. 11 id at para 111. 12 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 5\t \u00C2\u00A0literally, of its own family, sui generis, owing to the timing of its legal recognition: it arises from possession before the assertion of British sovereignty, as distinct from estates in fee simple, which arise after the assertion of British sovereignty.13 1.1.2 Judicial and Bar Association impetus Consistent with the language of Delgamuukw, former Chief Justice Lance Finch of the British Columbia Court of Appeal recently proposed that the legal profession had an obligation to learn in the sense of being receptive to multiple sources of legitimate legal authority. In the context of seeking to make space for Indigenous legal orders within the Canadian legal order, that is, of incorporating Indigenous legal orders into the common law,14 he suggested that a more widely applicable concept of the honour of the Crown imposes on all members of the legal profession the duty to learn, \u00E2\u0080\u009Cat the very least, to hold ourselves ready to learn.\u00E2\u0080\u009D15 More than encouragement, Finch CJ has labelled this obligation a duty.16 His mandate provides first, that \u00E2\u0080\u009Cthe idea of making space within the legal landscape does not fully reflect the nature of the enterprise.\u00E2\u0080\u009D17 \u00E2\u0080\u009CWe must find ways to achieve reconciliation by finding space for the Canadian legal order within the pre-existing legal landscape.\u00E2\u0080\u009D 18 Emphasising that Canadian legal \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A013 id at para 111. 14 The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012) at para 34. 15 id at para 14. 16 As distinct from a guideline or similar which is less weighty and obligatory. I am alluding to the distinction between mandatory and discretionary language in statutory interpretation. See Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia, (Australia, Lexisnexis Butterworths, 2006), at 271. 17 Finch, supra note 14 at para 37. 18 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 6\t \u00C2\u00A0practitioners are \u00E2\u0080\u009Cthe strangers in the landscape,\u00E2\u0080\u009D19 Finch CJ insists that the current Canadian legal system must reconcile itself to co-existence with pre-existing Indigenous legal orders.20 In addition to this inversion of onus and perspective, the duty has an epistemological component. It is also a matter of attempting in good faith, and as respectfully as possible, to enter new legal, ethical and cultural landscapes.21 As to the content of the duty, being \u00E2\u0080\u009Cready to learn\u00E2\u0080\u009D incorporates a need to be receptive to Indigenous legal orders. Receptivity demands entering a landscape empty handed, with all senses open.22 Moreover, it involves acknowledgement of past and present wrongs. That is, receptivity to the memory of such wrongs as well as to new knowledge.23 Receptivity must take account of context, including the context of the colonial enterprise and the injustice it has so often created. Secondly, the duty entails respect. It incorporates a need to acknowledge diversity and difference between and likely also within, Aboriginal and non Aboriginal value systems, and that, \u00E2\u0080\u009Cwe all have much to learn from one another.\u00E2\u0080\u009D24 Consistent with this mandate, the Canadian Bar Association (CBA) has recently urged \u00E2\u0080\u009Cjudges, lawyers, law makers and legal academics to recognize and value Indigenous legal traditions within the Canadian legal system.\u00E2\u0080\u009D25 The resolution\u00E2\u0080\u0099s preamble recognises most notably that \u00E2\u0080\u009Cto effect meaningful reconciliation between the Crown and Aboriginal Peoples in Canada, it is necessary to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A019 id at para 43. 20 ibid. 21 id at para 38. 22 id at para 39. 23 id at para 41. 24 id at para 40. 25 In Resolution 13-03 M of 16-17 February 2013. Canadian Bar Association Resolution 13-03-M, carried by the Council of the Canadian Bar Association at the Mid-Winter Meeting held in Mont-Tremblant, QC, February 16-17, 2013 online: Canadian Bar Association . \t \u00C2\u00A0\t \u00C2\u00A0 7\t \u00C2\u00A0recognize, respect and consider, Indigenous legal traditions, in accordance with the customs and traditions of each Aboriginal group or Nation from which the law emanates.\u00E2\u0080\u009D26 Moreover, it provides \u00E2\u0080\u009Cthere is no inherent limit to the ways in which Canadian and Indigenous legal orders may be mutually enriched and harmonized,\u00E2\u0080\u009D and that the onus is on \u00E2\u0080\u009Cjudges, lawyers, lawmakers and legal academics,\u00E2\u0080\u009D \u00E2\u0080\u009Cto address the profound change in perspective required to effectively recognize and incorporate Indigenous legal orders into Canadian law.\u00E2\u0080\u009D27 Neither the former Chief Justice\u00E2\u0080\u0099s mandate nor the subsequent CBA Resolution fuelled my interest in this project. Rather, as I elaborate upon below, my initial interest was in exploring the means by, feasibility of and extent to which traditional knowledge may be incorporated into the environmental assessment process having come from a legal background featuring primarily statutory, as distinct from constitutionally mandated, consultation processes, and relating to rather different subject matter.28 However, such Judicial and Bar Association callings lend credibility to me expending time to complete this project. 1.1.3 Theoretical support: Legal Pluralism and the jurispathic court? The third reason for embarking upon this project lies in the recognition of Canada as a multi-juridical state with multiple legal orders\u00E2\u0080\u0094common law, civil law, and Indigenous legal traditions-\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A026 ibid. Emphasis added. 27 ibid. Emphasis added. 28 As a solicitor practicing in NSW environment and planning law, I worked in public consultation related to town planning and major project applications. This did not involve consultation with Aboriginal peoples. Also, in this legal context not all obligations to consult were sourced in statute. For example, an obligation to consult could derive from a legitimate expectation, itself emanating from a public proclamation or government policy or similar. For detailed discussion of the sources of a legal obligation to consult in a planning and environment context, see Chief Justice Preston \u00E2\u0080\u009CConsultation: One aspect of procedural propriety in administrative decision making,\u00E2\u0080\u009D A paper presented to the Australian Institute of Administrative Law, 26 June, 2008. \t \u00C2\u00A0\t \u00C2\u00A0 8\t \u00C2\u00A0-existing simultaneously. Within this legally pluralist setting, there is a need to acknowledge Indigenous legal traditions. Professor Borrows advocates Legal Pluralism and justifies his invitation for others, including non Indigenous peoples, participating in understanding and applying Indigenous norms, with the rationale that \u00E2\u0080\u009Cthis provides the potential for widening our interpretative legal communities and improving each legal tradition.\u00E2\u0080\u009D29 As a non Indigenous person and an Australian trained lawyer, I am taking up the invitation. Robert Cover famously described courts as jurispathic, that is, as having agency in the killing of law.30 In the context of Legal Pluralism, Pooja Parmar explains, \u00E2\u0080\u009Cwe are all familiar with the scenario where norms generated by different communities (including the state), compete for validation by the courts, the formal institutional sites of such contestation and norm generation. Courts as we know, choose certain narratives over others. This suppression of certain visions of law and the worlds it can create, by courts, led Cover to describe courts of the state as jurispathic.\u00E2\u0080\u009D31 Some scholars including Sakej Henderson, also subscribe to this critique. He writes, \u00E2\u0080\u009Cin most translation processes, Courts have to violate the fundamental assumptions and premises of First Nations jurisprudences, in order to maintain fidelity to the essential characteristics and patterns of common law jurisprudence.\u00E2\u0080\u009D32 In view of such criticism, and having worked in varying capacities in a judicial system in the past, I am intrigued to test this criticism. Is this the reality here? Are things changing? Is the killing of law only the product of a Court\u00E2\u0080\u0099s agency? What role \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A029 John Borrows, Canada\u00E2\u0080\u0099s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 10. I suggest a loose comparison is the fresh perspective that can be gained by non planning lawyers interpreting town planning legislation, as occurred in Ballina Shire Council v Ian Watson [2006] NSWLEC 827.\t \u00C2\u00A030 Robert M Cover, \u00E2\u0080\u009CThe Supreme Court 1982 Term: Foreword Nomos and Narrative\u00E2\u0080\u009D (1983-84) 97 Harv. L. Rev 4 at 40. 31 Pooja Parmar, \u00E2\u0080\u009CClaims, histories, meanings: indigeneity and legal pluralism in India,\u00E2\u0080\u009D PhD Thesis, University of British Columbia Faculty of Law, 2012, unpublished, at 12, Footnote 40, Citing Robert M Cover, \u00E2\u0080\u009CThe Supreme Court 1982 Term: Foreword Nomos and Narrative\u00E2\u0080\u009D (1983-84) 97 Harv. L. Rev 4 at 40. 32 S J Henderson, First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society (Saskatoon: Native Law Centre, University of Saskatchewan, 2006 at 120. \t \u00C2\u00A0\t \u00C2\u00A0 9\t \u00C2\u00A0for the portrayers of Indigenous legal traditions themselves in achieving their traditions being heard and respected? As a former litigator, I suggest it is too simplistic and incomplete an evaluation to examine this question without also exploring the role of the portrayers of legal traditions themselves, in seeking to have their traditions taken into account. 1.1.4 My Entr\u00C3\u00A9e into cultural untranslatability My initial interest in examining the means by and extent to which traditional knowledge is and can be incorporated into the environmental assessment process, as well as with the realities of consultation involving Aboriginal peoples generally, emerged from witnessing the case of Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456. At this time, still wearing legal training wheels,33 I observed the apparent incommensurability of difference in the modus operandi of the Aboriginal applicant and non-Aboriginal proponent of development, in relation to the means of communication and negotiation. Kennedy concerned a judicial review challenge in which the applicant, Mr Roy Kennedy, an Aboriginal person of the Yuin Monaro people, sought a declaration of invalidity with respect to a consent issued under a provision of the National Parks and Wildlife Act (Parks Act), to permit destruction of Aboriginal objects in association with a Council approved residential development at Sandon Point, NSW.34 Alternatively, if such consent were valid, Mr Kennedy pleaded that the proponent had not complied with two of its conditions by not having operative within 12 months of the consent\u00E2\u0080\u0099s issuing, an Aboriginal Keeping Place for any Aboriginal objects collected or \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A033 I observed this case from the neutral perspective as a Judge\u00E2\u0080\u0099s Associate. I was a Law graduate but not yet admitted as a Solicitor. I was not thereby, advocating for any one party. 34 Kennedy at para 1. \t \u00C2\u00A0\t \u00C2\u00A0 10\t \u00C2\u00A0salvaged from the subject site.35 Mr Kennedy challenged the validity of the impugned consent on various grounds, including inconsistency, a failure to take into account relevant considerations, and a taking into account of irrelevant considerations. In a legal paradigm lacking any constitutional duty to consult with Aboriginal peoples, as well as any constitutionally protected Aboriginal rights, all challenges relied on impact on cultural heritage and were grounded in administrative law principles. Relying upon the doctrine of legitimate expectations, there was an issue as to the source of any obligation to consult with the applicant (Mr Kennedy), and effectively, as to the adequacy of such consultation. With there being no express or implied statutory requirement to consult in the Parks Act,36 and insufficient evidence to found any claim of an express promise made to or an arrangement with the applicant, the only basis for an obligation to consult the applicant was a public statement or practice adopted by the decision maker.37 Three policy documents were capable of founding the source of such an obligation on the first respondent Department to consult Mr Kennedy.38 The evidence provided that the Department\u00E2\u0080\u0099s policies and practices with respect to consultation about s 90 applications for consent to destroy Aboriginal objects were generally implemented through the actions of applicants for such consents and their consultants.39 The Court noted that the contents of documents the applicant relied upon contained principles and practices \u00E2\u0080\u009Cdeveloped to guide Parks and Wildlife staff and consultants / contractors it employs, in planning and \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A035 id at para 5. 36 id at para 85. 37 id at para 86. 38 id at para 89. 39 id at para 90. A consent to destroy an Aboriginal object, which is now called an Aboriginal heritage impact permit or AHIP, is a statutory instrument that the Director General of the Office of Environment and Heritage issues under s 90 of the National Parks and Wildlife Act, 1974 (NSW), to manage harm or potential harm, to Aboriginal objects or places, when development impacts upon an Aboriginal object, place, land or activity. \t \u00C2\u00A0\t \u00C2\u00A0 11\t \u00C2\u00A0conducting consultation with communities in cultural heritage issues.\u00E2\u0080\u009D40 These guiding principles included that \u00E2\u0080\u009Call relevant parties should be notified of the consultations that occur in their area of operation\u00E2\u0080\u009D and should be included in the consultation process. 41 Moreover, the documents provided that \u00E2\u0080\u009Cin determining whether a permit under s 90 should be issued, the National Parks and Wildlife Service (NPWS) needs to consider the significance of the Aboriginal object or place. The involvement of Aboriginal people in the assessment of significance of the object or place, although not required by the Act, is sought as a matter of practice.\u00E2\u0080\u009D42 With respect to what might be termed the adequacy of consultation, Jagot J noted the applicant received a letter inviting him to contact the proponent\u00E2\u0080\u0099s consultant with queries about the application and providing further details about the works proposed.43 Ultimately, Jagot J found that \u00E2\u0080\u009Cany expectation which the applicant might have had as a consequence of the three documents, and any practice of prior consultation about Sandon Point, was fulfilled.\u00E2\u0080\u009D44 The cross examination of Mr Kennedy in particular, incited my interest in what I would later understand as \u00E2\u0080\u009Ccultural untranslatability\u00E2\u0080\u009D or incommensurability of difference.45 As noted, in the event the subject consent were found to be valid, the applicant pleaded in the alternative, non \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A040 id at para 91. Emphasis added. 41 id at para 91. 42 ibid. 43 id at para 94. 44 id at para 95. Jagot J reasoned thus, \u00E2\u0080\u009CThe applicant as a \u00E2\u0080\u009Crelevant party\u00E2\u0080\u009D for consultation in the Sandon Point area was notified of the s 90 application. Such notification extended to the applicant an invitation to meet with NPWS archaeologist to discuss the application. In this manner, both of the relevant guiding principles were fulfilled: As a relevant party, the applicant was both, notified of the application and was included in the consultation process. As contemplated by the \u00E2\u0080\u009Cguiding principles,\u00E2\u0080\u009D it was then a decision for the applicant whether to participate further in that process.\u00E2\u0080\u009D Emphasis added. 45 See Sophie Mc Call, First person Plural: Aboriginal storytelling and the ethics of collaborative authorship (Vancouver: UBC Press 2011) at 70 where she discusses the problem of \u00E2\u0080\u009Ccultural untranslatability.\u00E2\u0080\u009D \t \u00C2\u00A0\t \u00C2\u00A0 12\t \u00C2\u00A0compliance with two of its conditions. Special conditions 2 and 3 of the impugned consent provided: 2 The Aboriginal Keeping Place must be operative within twelve months of the issuing of this consent, and the keeping Place must be made available for any Aboriginal objects collected or salvaged from the area of Sandon Point Stages 1 to 6. 3 The form and location of the Aboriginal Keeping Place and a plan for its management must be negotiated with the Aboriginal community groups listed in Schedule C.46 To determine the issue of compliance, Jagot J construed the conditions of consent thus: Special conditions 2 and 3 qualify the authority to knowingly destroy the Aboriginal objects within the sites identified by providing that an Aboriginal Keeping Place must be operative within 12 months and is to be negotiated between the consent holder and the groups nominated in Schedule C.47 With respect to Special Condition 3 in particular, Jagot J accepted \u00E2\u0080\u009Cit does not permit the consent holder or any one of the five groups nominated, to dictate the form and location of the Aboriginal Keeping Place or a plan for its management.\u00E2\u0080\u009D48 The consent holder has no capacity to require any one of the five groups so nominated to negotiate. The consent holder is bound to negotiate, but the five groups are not bound.49 Jagot J accepted the evidence of the proponent\u00E2\u0080\u0099s consultant as to the steps she had taken on its behalf to negotiate the form and location of the Aboriginal Keeping Place with the groups specified in the consent,50 and in particular, the evidence that plans for its negotiation had been delayed for various reasonsdisagreements with some of the groups about how the negotiation \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A046 Kennedy at para 70. 47 id at para 176. 48 ibid. 49 ibid. Emphasis added. 50 id at para 177. \t \u00C2\u00A0\t \u00C2\u00A0 13\t \u00C2\u00A0ought to proceed.51 Jagot J found that the proponent had to date, negotiated the form and location of the Aboriginal Keeping Place as required by the condition and that the fact that the negotiations remained incomplete did not place the proponent in breach of this condition.52 The content of much of the oral evidence concerned the negotiation of the Keeping Place and the difficulty of achieving this. From Mr Kennedy\u00E2\u0080\u0099s perspective, the system did not respect, amongst other things, his community\u00E2\u0080\u0099s means of communicating. In contrast, the proponent for development appeared frustrated with the failure by the applicant to attend meetings to facilitate the Keeping Place, and with the applicant\u00E2\u0080\u0099s slow pace of operating in general. The disparity in the positions of Mr Kennedy and the proponent in relation to this negotiation and the evident frustration of both of these parties, seemed to illuminate a challenge of not so much being heard, as understood. Despite the judge\u00E2\u0080\u0099s ruling on the legal issues, I perceived the apparent failure in negotiation for this Keeping place. 1.1.5 The value of celebration and countering the \u00E2\u0080\u009Ccollective memory of imperialism\u00E2\u0080\u009D In the course of preparing my research I turned to the work of Linda Tuhiwai Smith. Smith\u00E2\u0080\u0099s Decolonising Methodologies indicts the story-telling of Western research by imperial interests and provides insight into the type of epistemological shift necessary for researchers to provide meaning and sensitivity to voice within Indigenous communities.53 Smith\u00E2\u0080\u0099s rationales apply to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A051 ibid. 52 ibid. 53 John Ortley, \u00E2\u0080\u009CDecolonizing Methodologies: Research and Indigenous Peoples (Review)\u00E2\u0080\u009D (2005) 29 American Indian Quarterly 285 \u00E2\u0080\u0093 288 at 285. \t \u00C2\u00A0\t \u00C2\u00A0 14\t \u00C2\u00A0\u00E2\u0080\u009Cindigenist research.\u00E2\u0080\u009D54 However, I suggest that several of her arguments have resonance as justifications for engaging with Indigenous legal traditions. Smith\u00E2\u0080\u0099s chief caveat for researchers is that they must appreciate the historical context, what she terms, \u00E2\u0080\u009Cthe collective memory of imperialism,\u00E2\u0080\u009D55 because of its central place in the modern indigenous identity and reality. As Smith explains: \u00E2\u0080\u009Cimperialism frames the Indigenous experience. It is part of our story, our version of modernity.\u00E2\u0080\u009D56 Such is the case, Smith details, owing to the fact that Indigenous peoples have historically been the passive objects of research. They were most often the subjects of study by non-Indigenous researchers and were neither considered agents themselves, nor as having expert knowledge about themselves. They were not self defining. Rather, they were defined by social scientists.57 As a result of this legacy of research by Imperial interests, there is a need to reframe and re-cast the narrative. Consistent with this effort, I suggest that uncovering and disseminating the worldview of the Dunne Za that I hypothesise is insufficiently attended to in the decision making that I examine, is arguably a way of what Smith terms \u00E2\u0080\u009Crepresenting back\u00E2\u0080\u009D to the West to combat the collective memory of imperialism.58 It provides an opportunity to correct a skewed historical record in which likely more is known about one side of the encounter than the other, and possibly, to correct misrepresentations perpetuated by colonial interests and I submit also, earlier decision makers. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A054 This is a specific type of research which involves engaging in research on a community\u00E2\u0080\u0099s own terms. It is culturally safe, culturally relevant and appropriate, while simultaneously, satisfying the rigour of research. See Linda Tuhiwai Smith, Decolonising Methodologies Research and Indigenous Peoples, 2d ed (London: Zed Books, 2012) at 185-186. 55 id at 1. 56 id at 20. Emphasis added. 57 id at 21. 58 id at 1. \t \u00C2\u00A0\t \u00C2\u00A0 15\t \u00C2\u00A0However, lest I over-emphasise any potential benefits of my project, I take guidance from those who work closely with Indigenous communities who advise that assisting Indigenous communities is akin to acting as a project manager in that one must be mindful of the bigger picture, particularly the economic context, and in the allocation of resources to a problem or issue, appreciate that it is often one of many concerns.59 In a similar vein, Smith explains, Decolonising Methodologies: attempts to do more than de-construct Western scholarship simply by our own re-telling. In a decolonizing framework, deconstruction is part of a much larger intent. Taking apart the story, revealing underlying texts, and giving voice to things that are often known intuitively, does not help improve their current situation. It provides words, explains certain experiences, but it does not prevent someone from dying.60 Applying this advice, one could question the potential benefit of my project in view of the context in which this community of the West Moberly First Nation lives. When encroaching resource extraction activities are merely one of many concerns, what is to be gained by \u00E2\u0080\u009Ctaking apart the story\u00E2\u0080\u009D (in this case, the Court decisions), \u00E2\u0080\u009Crevealing underlying texts\u00E2\u0080\u009D (namely the Indigenous worldview that was variably prominent in the legal findings), and \u00E2\u0080\u009Cgiving voice to things that are often known intuitively\u00E2\u0080\u009D (such as Indigenous legal traditions and values)? What is the utility of extracting the Indigenous law from the West Moberly First Nation\u00E2\u0080\u0099s initial submission and communicating this?61 In particular, I question the value in the context of this community possessing defined treaty rights. Smith touches upon this predicament when she notes, \u00E2\u0080\u009Cwhile Indigenous peoples live in conditions below that of the non-indigenous world\u00E2\u0080\u00A6within these sorts \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A059 Personal communication, Ms Lee Schmidt, 21 November 2012. Tom Isaac, Lee Schmidt, Erin Tully, \u00E2\u0080\u009CThe Duty to Consult\u00E2\u0080\u009D, seminar hosted by the Indigenous Law Students Society at the University of British Columbia, Faculty of Law, 21 November 2012. Ms Schmidt noted that working with enforcing the duty to consult involves sitting down with one\u00E2\u0080\u0099s client and working out priorities. It is very strategic and political, and not merely legal. 60 Smith supra note 54 at 4. 61 By this I mean the Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources of June 2009 entitled, I Want to Eat Caribou before I die (the initial submission). \t \u00C2\u00A0\t \u00C2\u00A0 16\t \u00C2\u00A0of social realities, questions regarding Imperialism and the effects of colonialism, may seem to be merely academic. Sheer physical survival is far more pressing.\u00E2\u0080\u009D62 In response to questions about the utility of communicating Indigenous legal traditions, I embrace Vizenor\u00E2\u0080\u0099s notion of \u00E2\u0080\u009Csurviviance\u00E2\u0080\u009D and suggest it has application here.63 As Smith explains, celebrating survival is a particular approach that counters much non-Indigenous research that has commonly documented \u00E2\u0080\u009Cthe demise and cultural assimilation of indigenous peoples.\u00E2\u0080\u009D64 Instead, it celebrates survival or what Vizenor calls, surviviance, survival and resistance, by accentuating the degree to which Indigenous peoples and communities have retained cultural and spiritual values and authenticity in resisting colonialism.65 Consistent with this rationale, there may be merit in seeking to disseminate the role of Indigenous legal traditions in inciting the West Moberly\u00E2\u0080\u0099s legal challenge, and in illustrating legal traditions that are still being applied. This would go some way towards demonstrating that the legal traditions of the West Moberly First Nation remain alive and have relevance and utility in the colonised world. In addition, I speculate this means of celebrating the survival and endurance of this law might also heighten morale for members of the West Moberly First Nation. Smith hints at the intangible and psychological benefit that may ensue from such celebration: \u00E2\u0080\u009Cthe past, our stories local and global, the present, our communities, cultures and languages and social practices, all may be spaces of marginalization. But they have also become spaces of hope.\u00E2\u0080\u009D66 Similarly, the positive comments of some of the Aboriginal participants from a workshop I participated in, in which participants \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A062 Smith, supra note 54 at 4. 63 See G, Vizenor, Survivance: Narratives of Indigenous Presence, (Lincoln, Nebraska: University of Nebraska Press, 2008) Cited in Linda Tuhiwai Smith, Decolonising Methodologies Research and Indigenous Peoples, 2d ed (London: Zed Books, 2012) at 243. 64 Smith, supra note 54 at 243. 65 ibid. 66 id at 35. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 17\t \u00C2\u00A0extracted and applied legal principles contained in Dene, Anishnabe and Cree stories, support the notion that celebrating the endurance of these legal traditions, might have a positive impact on the community\u00E2\u0080\u0099s wellbeing. 67 Such a positive psychological contribution is perhaps equally as important as seeking to re-frame the narrative by countering and responding to misleading and questionable accounts, especially in a climate that risks being plagued by \u00E2\u0080\u009Cconsultation fatigue,\u00E2\u0080\u009D which can result from Aboriginal communities being overwhelmed by the sheer number of consultation referrals received, and deters some from persisting with seeking to protect their constitutionally protected rights. 1.2 Thesis outline This thesis commences in Chapter Two by outlining various ethical and other considerations that have informed my work on this project. First and foremost, I question the appropriateness of a non-Dunne Za person and accordingly, an outsider, engaging with Dunne Za legal traditions, and the risk of misrepresenting identity and way of life that accompanies this. Secondly, I discuss my concern with what I perceive to be my \u00E2\u0080\u009Ctranslation approach,\u00E2\u0080\u009D that is, a comparative law approach that resembles a translation exercise. In seeking to decipher Indigenous legal traditions, do we only detect what we are trained to recognize? Was I extracting Indigenous law or was my product better characterized as my attempt using my training in non-Indigenous legal traditions, to make sense of Indigenous legal traditions? This concern illustrates a further epistemological challenge: that of comprehending another worldview and the impossibility of approaching the task of deciphering Indigenous legal traditions tabula rasa. Accepting the theoretical guidance of Robert \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A067 Namely the workshop entitled Thinking about and Practising with Indigenous Legal Traditions, held in November 2011 in Fort St John. (The 2011 Conference). \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 18\t \u00C2\u00A0Cover as to the strength of influence of normative backgrounds, Chapter Two articulates the need to appreciate one\u00E2\u0080\u0099s own biases as well as those of the people one is studying. I address this by locating my identity within this research project in the effort to achieve as objective an analysis as possible. Finally, I identify concerns with the reliability of the work of the four anthropologists upon whom I rely in order to comprehend the legal traditions of the Dunne Za, and to supplement the snippets of detail contained within the petitioners\u00E2\u0080\u0099 legal submissions. Mindful of these ethical considerations, in Chapter Three I decipher examples of Indigenous legal traditions, both principles and practices, that material prepared by the West Moberly First Nation and instigator of the subject legal challenge hints at, 68 which are well established in the anthropological literature, and which were before the successive decision makers. I rely principally on the initial submission as well as the petitioners\u00E2\u0080\u0099 submissions to the Supreme Court of British Columbia. The initial submission is not a comprehensive account of Dunne Za law. It was prepared expeditiously given the urgency of the consultation process and the claims which it sought to support.69As such, I see it as a non-comprehensive survey of applicable Dunne Za law. I proceed in Chapter Four to evaluate the extent to which these legal traditions are respected, recognized and considered as sources of legitimate legal authority by the three levels of decision-making that occurred, from the initial administrative decisions of the statutory decision makers, to the differing judgments in the British Columbia Court of Appeal where the case was finalised.70 This comparative analysis permits certain findings. However, it is perhaps inappropriate to draw \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A068 By this I mean the initial submission. See note 61 supra. 69 I am grateful to the submission\u00E2\u0080\u0099s author, Mr Bruce Muir for this information, namely its expeditious preparation in the span of a month so as to put the Ministry on notice as to breaches of the duty to consult. 70 I note that both British Columbia and First Coal Corporation sought leave to appeal to the Supreme Court of Canada, which leave was subsequently withdrawn. \t \u00C2\u00A0\t \u00C2\u00A0 19\t \u00C2\u00A0wide reaching conclusions from a single case study. Throughout the analysis I draw attention to intricacies of the legal ingredients and certain technicalities which arguably inhibit the ability of decision makers to take account of Indigenous legal traditions. Chief of these is the reasonableness standard of review pursuant to which decisions as to the adequacy of consultation are assessed. Consistent with the effect of these legal technicalities, in Chapter Five I discuss how emerging trends in decision making and its review also complicate the capacity of Indigenous legal traditions to have significant influence on state-based decision makers. In addition, I discuss the dilemma of cultural untranslatability,71 which manifests in certain tendencies, such as a reticence to acknowledge myth as a legitimate source of law. Similarly, a failure to be receptive to the mechanics of certain Indigenous legal traditions, namely their substantive and procedural components, yields a risk that aspects of hunting decisions made pursuant to the traditional seasonal round for example, are dismissed as \u00E2\u0080\u009Chaphazard, irrational and improvident.\u00E2\u0080\u009D72 This illustration of cultural untranslatability played out, arises from a conflict between Dunne Za decision making methodologies and those of Canadian administrative law. Previous judicial decision making suggests that a refusal to acknowledge aspects of Indigenous legal traditions as being legitimate laws, is a genuine risk. Finally, I comment upon operational realities of the duty to consult\u00E2\u0080\u0099s implementation which further constrain its deliberative democratic function. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A071 See McCall, note 45 supra. 72 Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at 174. \t \u00C2\u00A0\t \u00C2\u00A0 20\t \u00C2\u00A02. Methodological and ethical concerns with interpreting Indigenous legal traditions This project is a fragment of a larger envisaged qualitative research project that I had originally planned. Premised on the fact that legal judgments can only tell so much, can deliver procedural orders but not betray insight into the reality of the implementation of the duty to consult on the ground, the original project aspired towards a threefold inquiry. First, taking a broad definition of \u00E2\u0080\u009Cimpact\u00E2\u0080\u009D it sought to explore the impacts that the petitioners alluded to in their multiple submissions but which did not receive much or any attention in the judgments. These included: the ability to transmit traditional ecological knowledge, the impact of consultation with government agencies on the legal order of the Dunne Za, and accompanying psychological impacts ensuing from the impact on a traditional way of life and increasing encroachment of resources extraction industries. Within the theme I termed the social and psychological impact of feared dispossession or social impact assessment, I was particularly interested in exploring the impact of the erosion of the relationship with the animal world and the accompanying spiritual connections. I anticipated a whole host of problems might ensue from severing that bond, because then, what would differentiate Dunne Za members from the balance of society? The judgments do not discuss psychological harm and yet, the initial submission of the West Moberly First Nation alludes to this being arguably the greatest threat from erosion of way of life.73 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A073 The initial submission mentions impacts including, the loss and fragmentation of culture which is akin to a loss of language, the loss of transmission of knowledge, cultural genocide: the importance of the land and linkage of habitat destruction with cultural genocide: See the initial submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources of June 2009 entitled, I Want to Eat Caribou before I die (the initial submission) at 73. The initial submission also contains much emotive language and words alluding to emotional and psychological impact. For example, that plants and water are no longer trusted: initial submission at 70, uncertainty about cultural continuity: at 70, and embarrassment, sadness, anger, depression and confusion: initial submission at 71. Professors Booth and Skelton document related findings from their 2008 fieldwork with the West Moberly and Halfway River First Nation governments. The issue of psychological impacts was raised as one that is never considered in any consultative process. Booth and Skelton found that the psychological impacts of ongoing processes are devastating. In relation to timing for example, they \t \u00C2\u00A0\t \u00C2\u00A0 21\t \u00C2\u00A0Secondly, it proposed cultural and institutional lines of inquiry. Within the theme, \u00E2\u0080\u009Cthe language / discourse of communication and accommodating multiple worldviews: a cultural impasse,\u00E2\u0080\u009D in the context of consultation processes, it was to consider the receptivity of Canadian decision makers. It also aspired to provide feedback for policy makers designing guidelines and policy to support the duty to consult\u00E2\u0080\u0099s implementation on the ground.74 Finally, it proposed to explore the possibility of cultural translation by examining what is lost in the translation process. That is, in seeking to translate and package Dunne Za law into legal arguments intelligible to a common law adjudicator, I intended to examine what was lost in the process. What happens in the transmission of Dunne Za / West Moberly First Nation voices, from the production of the initial submission to the legal arguments and submissions presented in Court?75 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0found that the anxiety and apprehension attached with feared development and loss of land is almost ubiquitous. One consultant employed by the First Nation narrated, \u00E2\u0080\u009CPeople think that the impacts come from what happens to the land, but as soon as a project is announced it starts to have impacts.\u00E2\u0080\u009D Similarly, as to the affect: \u00E2\u0080\u009CI think people feel powerless. I think they feel hurt, and they are in a position, which no one likes to be in, where you are darned if you do and darned if you don\u00E2\u0080\u0099t. If you participate you will feel the negative impacts and if you don\u00E2\u0080\u0099t it will go ahead anyways.\u00E2\u0080\u009D See Annie L Booth, Norm W Skelton, \u00E2\u0080\u009CYou Spoil Everything!\u00E2\u0080\u009D Indigenous Peoples and the consequences of Industrial Development in British Columbia\u00E2\u0080\u009D (2011) 13 Environ Dev Sustain at 695. Emphasis added. I experienced similar responses of ongoing apprehension from Elders at the 2011 conference. Namely, the workshop entitled Thinking about and Practising with Indigenous Legal Traditions, held in November 2011 in Fort St John.\t \u00C2\u00A074 The prospective application of a governance regime requires not only its design and implementation, but also, best practice management mandates monitoring and feedback to ensure its goals are being attained. This research project also aspired towards achieving such a proactive educational role. The ability to undertake research with critical inquiry objectives derives from Tri Council Policy Statement, Chapter 9, \u00E2\u0080\u009CResearch involving the First Nations, Inuit and Metis Peoples of Canada,\u00E2\u0080\u009D which provides in Article 9.7, \u00E2\u0080\u009Cresearch involving Aboriginal peoples that critically examines the conduct of public institutions, First Nations, Inuit and M\u00C3\u00A9tis governments, institutions or organizations or persons exercising authority over First Nations, Inuit or M\u00C3\u00A9tis individuals, may be conducted ethically, notwithstanding the usual requirement of engaging community leaders.\u00E2\u0080\u009D \t \u00C2\u00A0http://www.pre.ethics.gc.ca/eng/policy-politique/initiatives/tcps2-eptc2/chapter9-chapitre9/ accessed October 2012, 22 March 2014. 75 I have since learned that Professor Parmar undertook this inquiry in her PhD thesis. See Pooja Parmar, \u00E2\u0080\u009CClaims, histories, meanings: indigeneity and legal pluralism in India,\u00E2\u0080\u009D PhD Thesis, University of British Columbia Faculty of Law, 2012, unpublished. \t \u00C2\u00A0\t \u00C2\u00A0 22\t \u00C2\u00A0The research project\u00E2\u0080\u0099s primary inquiry was: Is the duty to consult, as an extension of Section 35 of the Constitution Act, 1982, making a positive difference to communities on the ground, who seek to employ the protection it offers in order to preserve their interests? Can these people achieve their intentions by seeking to uphold its fulfillment?76 Through this larger project, I was encouraged to interview elders and other members of the West Moberly First Nation who were involved in initiating the legal challenge. For various reasons, including that as a non-Aboriginal person I am an outsider, the proposal required identifying and addressing several ethical concerns associated with interviewing human participants. This fieldwork and as such this larger described project, was not possible. My interest in the subject matter and issues compelled a complete sketch of the topics I have articulated above.77 However, pragmatism, both temporal and financial, tempers the scope of inquiry I am pursuing at this point. Moreover, I do not think that the absence of fieldwork removes the need for applying ethical and other caution in the task of interpreting legal traditions from the West Moberly\u00E2\u0080\u0099s submissions. It seems logical that if one must exercise extreme caution in seeking to interview Aboriginal peoples about their legal traditions, then one must also exercise caution in purporting to interpret such traditions from written material. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A076 Mc Call raises similar questions in her exploration of the politics of voice. See Sophie Mc Call, First person Plural: Aboriginal storytelling and the ethics of collaborative authorship (Vancouver: UBC Press 2011) at 70 where she discusses the problem of \u00E2\u0080\u009Ccultural untranslatability.\u00E2\u0080\u009D Anthropologist Bruce Millar, in his work with oral traditions and their receptiveness by Canadian Courts, also explores what happens to oral materials on the path to the courtroom. He maintains that scholars, academics, judges, lawyers all might benefit from considering the various components of the process leading to the courtroom. See Bruce Millar, Oral History on Trial: Recognizing Aboriginal Narratives in the Courts (Vancouver: UBC Press 2011) at 9.\t \u00C2\u00A077 As did my awareness of the rare, one off opportunity this degree provided to conduct research independent of any commercial imperative or influential government policy. \t \u00C2\u00A0\t \u00C2\u00A0 23\t \u00C2\u00A0There are several concerns with such a task, which recent scholarship affirms.78 I divide these broadly into two categories within which there are sub-categories, namely ethical and historical concerns. 2.1 The appropriateness of this task and methodological limitations I had proposed interviewing so as to acquire a more complete picture. As a result of this not being possible, I was tasked with seeking to decipher and interpret the legal traditions and way of life of the Dunne Za without the benefit of being able to ask the submission\u00E2\u0080\u0099s authors for clarification. Mindful of my ethical duties, I initially apprehended possible ethical violation or the risk of this. How could I legitimately interpret something as fundamental as identity and way of life without guidance? I was anxious not to misrepresent identity and a way of life. I met this reality with trepidation and concern, and I questioned the appropriateness of this task. For the very purpose of seeking to interview, stemmed from my impression that Indigenous legal traditions were absent or at least underplayed as legal traditions in the submissions and judgments. Upon reading an outline of ethical and other caveats associated with such a task, which a recent paper delineates, 79 I took some comfort that I have not been inappropriately cautious in approaching this exercise, and that my concerns are warranted. Expressed concisely, Professor Borrows concisely encapsulates the magnitude of such epistemological and other risks associated with seeking to engage with Indigenous legal traditions and another worldview, when he notes, \u00E2\u0080\u009Cin practice, there are enormous risks for misunderstanding and misinterpretation when Indigenous \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A078 The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012). 79 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 24\t \u00C2\u00A0laws are judged by those unfamiliar with the cultures from which they arise. The potential for misunderstanding is compounded if each culture has somewhat different perceptions of space, time, historical truth, and causality.\u00E2\u0080\u009D80 The former Chief Justice\u00E2\u0080\u0099s paper is comprehensive as to its cautions and guidance, several of which parallel the concerns I raised in the course of preparing my proposal for behavioural research ethics review. Accordingly, rather than recite all of its detailed guidance, I incorporate only those cautions that are additional to those I had identified, and which there seems to be merit in acknowledging. I note that Finch CJ focuses his attention on what might be termed cultural impediments to the task of incorporating Indigenous legal traditions into the common law. Whereas, in the context of the duty to consult, I am also concerned with technical legal impediments as well as operational constraints to the ability of Indigenous legal traditions being substantively and procedurally considered. It seemed that the greatest barrier to this task was convincing myself that the initial submission of the West Moberly First Nation provides a reasonably accurate portrayal of Dunne Za law. As a student with both legal and historical training, I perceived I was at risk of producing mere conjecture. It seemed that the best means of seeking to appease my concerns was to locate other reliable sources of guidance as to the way of life and legal traditions of the Dunne Za. Consequently, I researched other case law in which evidence of the way of life and legal traditions of the Dunne Za had been admitted. For example, the judgment in Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development) [1987] FCC 1005 (the Apsassin case) which I refer to in Chapter 3, contains admitted oral evidence, including of oral \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A080 John Borrows, Canada\u00E2\u0080\u0099s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 140. \t \u00C2\u00A0\t \u00C2\u00A0 25\t \u00C2\u00A0histories, of the Dunne Za. This is in contrast to the reliance upon submissions and affidavit evidence only in West Moberly, by virtue of it being a judicial review proceeding. Thus, in the pursuit of circumventing my methodological obstacles I referred to a previous decision that directly relates to the Dunne Za, and in which oral evidence was adduced. In addition, as I elaborate below, I sought to ascertain the most reliable anthropological accounts. In this way, my approach is comparable to reliance upon circumstantial evidence in lieu of having sufficient \u00E2\u0080\u009Cdirect evidence,\u00E2\u0080\u009D in which I reach \u00E2\u0080\u009Cfindings\u00E2\u0080\u009D and draw inferences based upon a preponderance of evidence.81 Having read several commentaries that address the task of an outsider engaging with Indigenous legal traditions, there seems to be an active sub-debate at play with respect to the appropriateness of this endevour. Should outsiders engage with Indigenous legal traditions? Whereas some scholars are vehemently opposed, others welcome the scholarship. There certainly does not appear to be unanimity as regards its appropriateness. Legal scholar Sakej Henderson champions opposition to this task. He notes, \u00E2\u0080\u009Cthe vast depth and discourses of First Nations jurisprudences, makes communication difficult outside its language. Its distinct processes and languages have made it difficult for Canadian jurisprudence to comprehend these sources of jurisprudence.\u00E2\u0080\u009D82 Further, \u00E2\u0080\u009Cin most translation processes, Courts have to violate the fundamental assumptions and premises of First Nations jurisprudences, in order to maintain fidelity to the essential characteristics and patterns of common law jurisprudence.\u00E2\u0080\u009D83 Mindful that \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A081 I rely upon leading High Court decisions in relation to circumstantial evidence, namely Shephard v R (1990) 170 CLR 573 at para 4 as well as Chamberlain v. The Queen (No. 2) (1984) 153 CLR 521. 82 S J Henderson, First nations Jurisprudence and Aboriginal Rights: Defining the Just Society (Saskatoon: Native Law Centre, University of Saskatchewan, 2006) at 120. 83 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 26\t \u00C2\u00A0Henderson is describing the agency of courts in engaging with Indigenous legal traditions, I think one can infer that he does not think this should be embarked upon without proficiency with Indigenous languages. Henderson proceeds to discourage with greater force. In relation to First Nations teachings contained in stories, he suggests, \u00E2\u0080\u009Cthe conceptual and experiential level of these teachings, requires a comprehension of First Nations languages and ceremonies based on years of detailed, rigorous and disciplined training.\u00E2\u0080\u009D 84 Similarly he declares, \u00E2\u0080\u009CIndigenous knowledges\u00E2\u0080\u00A6form a complete knowledge system with its own concepts of epistemology, philosophy, and scientific and logical validity that can only be fully learned or understood by means of the pedagogy traditionally employed by these peoples themselves, including, apprenticeship, ceremonies and practices.\u00E2\u0080\u009D85 At its highest, Henderson insists that \u00E2\u0080\u009Ca fundamental prerequisite of comparative jurisprudence, is that non-Aboriginal scholars be taught Aboriginal languages, and without years of preparatory training accompanied by rigorous experience and discussion, it is difficult for anyone to understand the different levels of First Nations knowledge and jurisprudence.\u00E2\u0080\u009D86 I surmise he provides that language competency to a very high standard is a condition precedent to the ability to engage with First Nations traditions. Is this task then exclusively the domain of First Nations peoples with their language and embedded in their cultural practices? What role then for the outsider such as me who could not attempt engagement \u00E2\u0080\u009Cwithout years of preparatory training.\u00E2\u0080\u009D87 Similarly, targeting a wider audience, an Indigenous Legal Traditions Discussion Paper warns of the risks apparent albeit not with equivalent vigour. It does not equate this endevour to a prohibition absent necessary training. It provides, \u00E2\u0080\u009Cindeed, no system of law has meaning outside \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A084 id at 121. 85 ibid. Emphasis added. 86 ibid. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 27\t \u00C2\u00A0of its cultural context. Since every culture has its own notions of space, time, historical truth and causality, and since a shared understanding of such concepts is taken for granted when drawing inferences or conclusions about a given set of facts, there is much scope for misinterpretation when people unfamiliar with Indigenous cultures interpret Indigenous laws.88 I take a degree of comfort from John Borrows who appears to advocate that a lack of language competency ought not be a deterrent. Speaking of his 2010 compilation, Borrows hopes that this work \u00E2\u0080\u009Crepresents a further invitation for those interested in this topic to join with him and other willing scholars, practitioners, politicians, policy analysts, elders, Chiefs and leaders in the identification, recognition, questioning and further development of our legal traditions.89 He predicts, as more people participate in understanding and applying Indigenous norms, the potential exists for the widening of our interpretative legal communities and the improvement of each legal tradition.90 From Borrows\u00E2\u0080\u0099 perspective, there are no antecedents to participation. This is not a task that is confined to Indigenous peoples. Rather, he encourages others to participate and alludes to the potential for great benefits to accrue \u00E2\u0080\u009Cby others adding their critical voices or their commendations of the concepts covered here.\u00E2\u0080\u009D 91 He provides, \u00E2\u0080\u009Cfurther discussion and development of these traditions, are essential to ensure that Indigenous legal traditions do not become withdrawn from critical inquiry, or become lost in mythologies of the past.\u00E2\u0080\u009D92 In summary, Borrows\u00E2\u0080\u0099 is not an admonition but a mindful invitation. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A088 Canada, Law Commission of Canada, Justice Within: Indigenous Legal Traditions (Discussion Paper) August 2006, at 14. Emphasis added. 89 Borrows, supra note 80 at 10. Emphasis added. 90 ibid. Emphasis added. 91 id at page 104. This is comparable to the perspective gained by non town planning lawyers interpreting environment and planning legislation. As my former mentor commented, it provides the opportunity for fresh perspectives in statutory interpretation. 92 ibid. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 28\t \u00C2\u00A0Professor Johnston takes issue with Henderson\u00E2\u0080\u0099s caution, noting that pragmatically, if only those with Aboriginal language skills completed the work, then very little would be done.93 As such, I infer that it must, by necessity occur. Consistent with this, the whole premise of the former Chief Justice\u00E2\u0080\u0099s duty to learn, is that as an extension of and consistent with the courts\u00E2\u0080\u0099 recognition of Aboriginal societies, and the fact that Aboriginal legal orders and Aboriginal societies are inextricably linked, it would be tantamount to evading the courts\u00E2\u0080\u0099 responsibilities, for courts and the legal profession to avoid engaging with Indigenous legal traditions.94 In conclusion, the academic literature and professional guidance support my ethical and other apprehensions as legitimate. Nevertheless, in the interest of seeking to contribute to the continued vitality and growth of Indigenous legal traditions, I proceed to embark upon the task of extracting and deciphering Dunne Za law to test the degree that it is being understood and recognised by decision makers, without the benefit of clarification by the Dunne Za with due caution. 2.2 Translation In the process of extracting and deciphering the Indigenous law from the initial submission, I relied upon my own legal training, as well as an understanding of other cultures in which a relationship with the \u00E2\u0080\u009Cother than human\u00E2\u0080\u009D95 or natural world96 different to an anthropocentric \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A093 Personal communication, 23 July 2012. 94 The former Chief Justice provides, \u00E2\u0080\u009CIt is artificial to separate the concept of pre-existing societies from that of pre-existing legal orders. No bright-line distinction exists between a normative principle and an identifiable law, much less in the case of societies which do not frame their own legal orders around the idea of written common law or statutes.\u00E2\u0080\u009D That is, Finch deduces as such: Courts recognise pre-existing Aboriginal societies. Such societies cannot be distinguished from Aboriginal legal orders. It follows that Courts also need to recognise pre-existing legal orders. See Finch supra note 78 at para 1. 95 I have been encouraged to adopt Hallowell\u00E2\u0080\u0099s typology for the non human world. See A Irving Hallowell, \u00E2\u0080\u009COjibwa Ontology, Behavior and World View\u00E2\u0080\u009D in Raymond Fogelson and Richard Adams, \t \u00C2\u00A0\t \u00C2\u00A0 29\t \u00C2\u00A0paradigm existed, in order to comprehend and interpret the legal traditions. It struck me that through such reliance I was employing a comparative law approach that very much resembled a translation exercise. I apprehended certain risks with such methodology. First, as to the product I was achieving, it concerned me whether what I was extracting was Indigenous law, or rather, my attempt using my training in non-Indigenous legal traditions, as well as initially at least, my existing knowledge of ancient societies and their legal systems and religion,97 to make sense of Indigenous legal traditions. Articulating this concern simply, it is one of recognition. Do we only detect what we are trained to recognize? For example, I proceed to recognise the Dunne Za\u00E2\u0080\u0099s traditional seasonal round as a quasi land use planning strategy given my experience with interpreting and applying environmental planning instruments.98 Similarly, I interpret substantive and procedural components to Dunne Za decision making, due to my training in environmental law with its administrative law mechanics. Whereas, I suspect that a Dunne Za person might not categorise his or her legal traditions in this way. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0The Anthropology of Power Ethnographic Studies from Asia, Oceania, and the New World (New York: Academic Press, 1977) at 19. 96 As an alternative to Hallowell\u00E2\u0080\u0099s classification, this is Professor Ridington\u00E2\u0080\u0099s term for the non human world. See Robin Ridington Little Bit Know Something, Stories in a Language of Anthropology, (Iowa: University of Iowa Press, 1990) and Robin Ridington and Jillian Ridington in collaboration with Elders of the Dane-Zaa First Nations, Where Happiness Dwells: a history of the Dane-Zaa First Nations, (Vancouver: UBC Press, 2013). 97 As a comparative aide to make sense of the spiritual underpinning and mindset within which Dunne Za society was based and governed, including a differing relationship with the animal world, while being attuned to the differences, I have been mindful of other societies in which a spiritual element and differing relationship with the animal world was pervasive and highly influential in the social order and to an extent, governance. Historically, a relationship with the animal world different from an anthropocentric relationship was not unusual. The spiritual connection and influence of animals in governance and decision-making is not new. In the Roman Republic, Triumvirate and Empire for example, augurs interpreted the flight of birds as an omen that influenced leaders\u00E2\u0080\u0099 decisions, such as whether to wage war on a potential Roman colony as a means of expanding the empire. Similarly, soothsayers (hauruspices) interpreted the entrails of animals for similar purposes. Animals communicated the will of the Gods, namely the Olympic Gods or deified leaders, and thereby influenced decision making be it of the Consuls in the Republic, Triumvirs throughout the Triumvirate or Emperors in the Empire. Despite having leaders to an extent, Romans lived by the will of the Gods. 98 For example, my interpretation of State Environmental Planning Policy (Seniors Living) 2004 in working on the Native Vegetation (Application of Act) Regulation 2009 (NSW), which I was responsible for drafting, as an amendment to the Native Vegetation Act, 2003 (NSW). \t \u00C2\u00A0\t \u00C2\u00A0 30\t \u00C2\u00A0I sensed that this comparative exercise of drawing analogies with non-indigenous legal principles, standards and methodologies, and essentially drawing from my own experience, might be inappropriate and that I should instead seek to approach this task tabula rasa because the differences outweigh the commonalities. Faced with such dilemmas, I sought guidance from my supervisor who responded that it was not possible to approach the task with a blank slate given that we are all influenced by our backgrounds. I note that Finch CJ provides similar guidance in noting the influence of the \u00E2\u0080\u009Cpresence of one\u00E2\u0080\u0099s own pre-existing cultural tenets,\u00E2\u0080\u009D in the task of interpreting another culture\u00E2\u0080\u0099s precepts.99 Related to this point, Borrows advocates Legal Pluralism and argues that incorporating Indigenous law into Canadian law can strengthen Canadian law but first there is a need to acknowledge differences in paradigm, values and institutions, and that we must appreciate our own biases as well as those of the people we are studying.100 Guided by such cautions and methodological direction, I proceed to \u00E2\u0080\u009Csituate myself\u00E2\u0080\u009D in this research below. Prior to doing this, I briefly acknowledge substantiation for my concerns with this translation approach that the academic literature provides. I believe this gives credence to my concerns while also highlighting related ones. First, as regards the visibility only of legal principles that resemble common law legal principles, Borrows affirms this risk is real. In the context of judicial interpretation of Indigenous law, he provides \u00E2\u0080\u009Cjudges are susceptible to the danger of only recognizing law within Indigenous societies if they find analogies to concepts within English law. The Court said \u00E2\u0080\u009Cthis tendency has to be held \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A099 Finch, supra note 78 at para 22. 100 Borrows, supra note 80 at 141. \t \u00C2\u00A0\t \u00C2\u00A0 31\t \u00C2\u00A0in check\u00E2\u0080\u009D because it would prevent the recognition of beneficial rights that developed under Indigenous systems.\u00E2\u0080\u009D101 In addition, Finch CJ raises a slightly different concern, namely the risk that translation yields a different meaning or put another way, fails to achieve the intended meaning. He provides, \u00E2\u0080\u009Cunavoidably, the vast majority of judicial or lawyerly encounters with Indigenous laws will occur in translation; in the process, these spoken or written translations may present an incomplete or even skewed characterization of the original concept.\u00E2\u0080\u009D102 Translation risks being unable to grasp the nuances and subtleties of intended meaning that only an appreciation of the source language can detect.103 Owing to such risk, Borrows declares there is an obligation accompanying such task, which is indicated by the mandatory language \u00E2\u0080\u009Cmust,\u00E2\u0080\u009D to pay attention to implicit meanings. He provides, \u00E2\u0080\u009Cthose who evaluate the meaning, relevance, and weight of Aboriginal legal traditions must ... appreciate the potential cultural differences in the implicit meanings behind implicit messages if they are going to draw appropriate inferences and conclusions. They should attempt to grasp their unspoken symbolic aspects in order to evaluate their truth and value.\u00E2\u0080\u009D104 This parallels much of the former Chief Justice\u00E2\u0080\u0099s invitation for a duty to learn. What Borrows expresses as guidance and articulates in theory, Pooja Parmar illustrates in operation through her recent PhD thesis.105 Parmar addresses two perspectives with respect to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0101 Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 402-4 (JCPC). Cited in note 80 supra at 16, footnote 72. 102 Finch, supra note 78 at para 25. Emphasis added. 103 I have had my own experience of this predicament when my Professor for Italian 1001 told me that while, owing to my experience with the Latin language my comprehension of Italian grammar was sound, I needed to pay attention to intonation else I risked mis-conveying the intended meaning of the dialogue. 104 Borrows, supra note 80 at 140, cited in Finch, supra note 78 at para 25. Emphasis added. 105 Pooja Parmar, \u00E2\u0080\u009CClaims, histories, meanings: indigeneity and legal pluralism in India,\u00E2\u0080\u009D PhD Thesis, University of British Columbia Faculty of Law, 2012, unpublished. \t \u00C2\u00A0\t \u00C2\u00A0 32\t \u00C2\u00A0translation: the role and impact of other people as translators as well as her own role as a translator. My thesis is less directly concerned with examining the impact of the role of other people as translators and representers of meaning. However, I might be providing an incomplete commentary of this methodological approach and its risks if I neglected to address Dr Parmar\u00E2\u0080\u0099s recent analyses in relation to, inter alia, the effects of translation. A primary focus of Parmar\u00E2\u0080\u0099s thesis is the role and repercussions of others as translators of meaning. Parmar examines the destruction of particular and situated meanings that occurs when claims of Indigenous peoples106 are translated into the stronger language of the formal legal system via acts of representation of their stories. In her case study, such representation is by people seeking to support the interests of Adivasis, and yields the result that critical elements of what the dispute means to them, are lost. In this way, Parmar examines the process of translation as a causation agent in precipitating a loss of meaning. Through exploring the accounts of some of the instigators and protagonists of the sit in agitation, Parmar finds that when Adivasi protests are understood on their own terms in the context of their lives, the meanings that emerge differ markedly from the ones that other people\u00E2\u0080\u0099s accounts convey about these protests.107 As such, one of her key findings is that translation into a language that is adjudicable and intelligible to decision makers and thereby, \u00E2\u0080\u009Cacceptable to the target audience,\u00E2\u0080\u009D108 yields a loss of meaning. As to the mechanism by which such loss occurs and its specific causation, Parmar suggests this loss of meaning is the result of a meeting of different normative worlds, whereby people inhabiting one \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0106 In her case, the Adivasis or original inhabitants of Kerala State, India, in their dispute with Coca Cola. 107 Parmar, supra note 105 at 3. 108 id at 15. \t \u00C2\u00A0\t \u00C2\u00A0 33\t \u00C2\u00A0normative universe receive, interpret, and re-order and represent claims that arise in and are informed by legal cultures different than their own.109 Parmar\u00E2\u0080\u0099s illustration of the difference between claims, as represented before the judicial system, and as understood by protagonists, as being due to the agency of translators, falls within the theme of cultural untranslatability, elements of which I discuss to an extent in Chapter 5 This thesis is less directly concerned with examining the impact of the role of other people as translators and representors of meaning, as I am not critiquing the representation of West Moberly First Nation claims before the Supreme Court of British Columbia for example, and the extent to which the West Moberly First Nation\u00E2\u0080\u0099s genuine grievances permeated their submissions to the Court.110 I am not examining that particular translation role. Rather, I am being mindful of the effect of my own role as a translator. I am more interested with Parmar\u00E2\u0080\u0099s musings as to her own role as a translator, as some of her apprehensions parallel and complement those I have identified, albeit that her role, which included having performed extensive fieldwork, differed. Parmar identifies at least two pertinent concerns. First, what Robert Cover might characterise as the ability to penetrate and comprehend another nomos or worldview. Parmar provides, \u00E2\u0080\u009Ctranslation of unfamiliar stories narrated in unfamiliar languages into familiar languages, does not however, automatically lead to comprehension of life worlds.\u00E2\u0080\u009D111 She draws attention to our inability to \u00E2\u0080\u009Csee and experience the world as does another \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0109 id at 13. 110 I note that I contemplated this in my proposed fieldwork. 111 Parmar, supra note 105 at 17. \t \u00C2\u00A0\t \u00C2\u00A0 34\t \u00C2\u00A0human being living in a different life.\u00E2\u0080\u009D112 Secondly, she notes \u00E2\u0080\u009Cthe difficulties of translation also encompass the trouble we have in accepting the process of translation for what it is: imprecise, imperfect and provisional, and our impatience with the imprecision and imperfection.\u00E2\u0080\u009D113 The problem with translation is our refusal to acknowledge that we do not all speak the same language, and that in trying to translate, that is, communicate across difference, we often want to forget that we are in fact translating and that our language may not be able to represent fully what is expressed in a different language.114 Finally, she refers to James White who suggests that the failure we experience in an attempt to translate, is \u00E2\u0080\u009Ca necessary and instructive experience\u00E2\u0080\u009D because it is in trying to translate that we learn to recognize and respect the \u00E2\u0080\u009Cother,\u00E2\u0080\u009D even as we often \u00E2\u0080\u009Cassert ourselves and our own languages\u00E2\u0080\u009D in relation to the other.115 In response to these concerns, I address the ability to penetrate and comprehend other nomoi in the segment below. Secondly, as regards the process of translation as imperfect and provisional, I think I have already been mindful of this concern. Finally, as to James White\u00E2\u0080\u0099s declaration that failures at attempts to translate are part of the necessary evolution of the translation process in the respect it yields for the other, I experienced this in the process of trying to decipher Indigenous law from the initial submission. In attempting to apply my western legal training to Indigenous legal traditions, I came to appreciate that I was not really comparing apples with apples. Moreover, I particularly felt this in my attempt to engage with the oral histories of the Dunne Za. I was \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0112 id at 17-19. 113 Walter Benjamin, \u00E2\u0080\u009CTask of the Translator: An Introduction to the Translation of Baudelaire\u00E2\u0080\u0099s Tableux Parisiens\u00E2\u0080\u009D (trans Harry Zohn) in Lawrence Venuti, ed., Translation Studies Reader (Florence: Routledge, 1999) 75, cited in note 105 supra at 20 at footnote 64. 114 Parmar, supra note 105 at 20. Emphasis added. 115 James B White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: Univ of Chicago Press, 1990) at xiv, 229, cited in Parmar, supra note 105 at 21, note 69. \t \u00C2\u00A0\t \u00C2\u00A0 35\t \u00C2\u00A0baffled by perceived incongruities and consequently, intrigued. The degree of incomprehensibility indicated the degree of difference in worldviews I was trying to fuse. 2.3 Epistemological challenges In undertaking this work, I am dealing with another worldview. As such, this is an attempt at an epistemological shift, or a shift in the lens with which one views the world.116 I am most interested in this. Indeed my reason for wanting to complete a Masters degree was so as to appreciate coming to terms with a different paradigm for viewing the world, and the extent to which decision makers are able to comprehend this. 2.3.1 Theoretical grounding Owing to the different normative backgrounds or nomoi from which we derive, to which attach their inherent biases and preconceptions, there is a need to situate one\u00E2\u0080\u0099s self in the research to in order to be able to conduct an objective analysis. This is an uncontroversial point that the academic literature identifies and applies117 and which the professional commentary sustains. All the commentators I have examined are unanimous upon this point as they all take theoretical \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0116 Personal communication with Professor Darlene Johnston on 11 May 2012 during which I asked, in the context of critique of Supreme Court duty to consult case law, \u00E2\u0080\u009CAt what point does the lens become blurry?\u00E2\u0080\u009D 117 I note that both Professors Promislow and Napolean situate themselves in their research. I have taken guidance from these models. See Janna Beth Promislow, \u00E2\u0080\u009CTowards a Legal History of the Fur Trade: Looking at Law at York Factory, 1714-1763\u00E2\u0080\u009D (LLM Thesis, York University, October 2004) in which Promislow deciphers law from fur trade records, and Val Napolean \u00E2\u0080\u009CLiving Together Gitksan Legal Reasoning as a Foundation for Consent,\u00E2\u0080\u009D in Jeremy Webber, Colin McCleod and Others, Between Consenting Peoples: Political Community and the Meaning of Consent (Vancouver: UBC Press 2010), in which Dr Napolean unpicks Gitksan legal reasoning evident in the dispute resolution process pertaining to the Ganeda Crest dispute. \t \u00C2\u00A0\t \u00C2\u00A0 36\t \u00C2\u00A0direction from Professor Cover. So, what is Cover\u00E2\u0080\u0099s explanation that has been so influential? Professor Cover discusses much in his seminal article Nomos and Narrative. The principal point to derive from his discussion that is of relevance to this thesis seems to be the role of nomoi in the interpretation of law, namely the strength of influence of normative backgrounds and the need to acknowledge this. Cover explains that we are embedded in normative worldviews, or nomoi, in which we \u00E2\u0080\u009Cconstantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.\u00E2\u0080\u009D118 This \u00E2\u0080\u009Cnormative universe\u00E2\u0080\u009D or nomos, as he borrows from the Greek, is equally as important in achieving meaning in law or legal interpretation, as the \u00E2\u0080\u009Cofficial application of legal precepts.\u00E2\u0080\u009D In relation to this role of nomoi in legal interpretation, or the inseparability of law and narrative, Cover provides, \u00E2\u0080\u009Cno set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.\u00E2\u0080\u009D119 \u00E2\u0080\u009CEvery prescription is insistent in its demand to be located in discourse \u00E2\u0080\u0093 to be supplied with\u00E2\u0080\u00A6 explanation and purpose.\u00E2\u0080\u009D120 Prescription cannot \u00E2\u0080\u009Cescape its origin and its end in experience, in the narratives that are the trajectories plotted upon material reality by our imaginations. 121 \u00E2\u0080\u009CThe normative universe is held together by the force of interpretative commitments...these commitments \u00E2\u0080\u0093 of officials and others \u00E2\u0080\u0093 do determine what law means and what law shall be.\u00E2\u0080\u009D122 As such, a legal tradition is \u00E2\u0080\u009Cpart and parcel of a complex normative world.\u00E2\u0080\u009D123 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0118 Robert M Cover, \u00E2\u0080\u009CThe Supreme Court 1982 Term: Foreword Nomos and Narrative\u00E2\u0080\u009D (1983-84) 97 Harv. L. Rev 4 at 4. 119 ibid Emphasis added. 120 id at 5. 121 ibid Emphasis added. 122 id at 7. 123 id at 9. \t \u00C2\u00A0\t \u00C2\u00A0 37\t \u00C2\u00A02.3.2 Identification of the researcher\u00E2\u0080\u0099s identity within the research task or situating one\u00E2\u0080\u0099s self in the research In this way, the acknowledgment of one\u00E2\u0080\u0099s biases helps to limit the permeation and pre-judging of another worldview. Such identification seeks to strengthen the objectivity and thereby credibility, and if not, at least, the utility of one\u00E2\u0080\u0099s work. Moreover, a particular rationale is the effort to avoid a Eurocentric perspective. Eurocentrism has been defined as \u00E2\u0080\u009Cthe manifestation of ethnocentrism by Europeans. The ubiquitous tendency to view all peoples and cultures of the world from the central vantage point of one\u00E2\u0080\u0099s own particular ethnic group and, consequently, to evaluate and rank all outsiders in terms of one\u00E2\u0080\u0099s own particular cultural standards and values.\u00E2\u0080\u009D124 As such, I do my utmost to articulate my preconceptions and normative universe so as to identify my conscious and unconscious interpretive commitments. I arrive at this task with a background in environmental law and a long held interest in environmental sustainability broadly.125 I have had to come to terms with a new legal and social paradigm for understanding the relationship between humans and the natural, or, what some term, the \u00E2\u0080\u009Cother than human\u00E2\u0080\u009D world.126 However, my interpretative commitments and normative universe lends me amenable to this transition. I have previously worked in a world in which environmental assessment and other decision-making occurred within legislative and policy regimes which strove towards achieving ecologically sustainable development (ESD), namely, development that \u00E2\u0080\u009Crequires the effective integration of \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0124 E. Kallen, Ethnicity and Human rights in Canada (Toronto: Gage, 1982). Cited in Henderson, supra note 82 at 119. 125 For example, in addition to having practiced in planning and environmental law, I have volunteered at the Environmental Defenders Office Ltd and the Centre for Sustainability Leadership Ltd. 126 See Hallowell, supra note 95. \t \u00C2\u00A0\t \u00C2\u00A0 38\t \u00C2\u00A0economic and environmental considerations in decision-making processes,\u00E2\u0080\u009D 127 and which is achieved though the implementation of principles including the precautionary and polluter pays principles.128 In particular, I worked on threatened species and native vegetation litigation, legislation and advisory matters, and which broadly might be termed, biodiversity law. As part of the development assessment regime, specific legislation exists which, with its provisions integrated with many other acts,129 aims to prevent declining rates of biodiversity. Take the Threatened Species Conservation Act, 1995 (TSC Act) for example. With its ostensible aim at its inception being to address the loss of Australia\u00E2\u0080\u0099s native plants and animals, it constitutes a legislative response to a concern with the numerical loss of species, and the fact of Australia having \u00E2\u0080\u009Cthe worst rate of mammal extinction rates in the world.\u00E2\u0080\u009D130 One of the Act\u00E2\u0080\u0099s objects, which remains identical today as at its inception, is to \u00E2\u0080\u009Cto prevent the extinction and promote the recovery of threatened species, populations and ecological communities.\u00E2\u0080\u009D131 Although another principal aim is to \u00E2\u0080\u009Cconserve biological diversity,\u00E2\u0080\u009D132 the Act does not operate in a vacuum devoid of the influence of other economic and social interests.133 Rather, the TSC Act\u00E2\u0080\u0099s provisions, protections and offences are integrated into the environmental assessment and development \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0127 Section 6 (2) Protection of the Environment Administration Act, 1991 (NSW). 128 ibid. 129 Including, the National Parks and Wildlife Act 1974 (NPW Act), Native Vegetation Act 2003, Water Management Act 2000 and EPA Act. See Eric Bateman, \u00E2\u0080\u009CUnderstanding Animal Legislation and the Environment \u00E2\u0080\u0093An Overview of some elements of the Threatened Species Conservation Act 1995,\u00E2\u0080\u009D (Paper delivered at NSW Young Lawyers Continuing Legal Education Seminar, 2010) [unpublished]. 130 NSW, Legislative Assembly, Hansard, Second Reading Speech to the Threatened Species Conservation Bill (No. 2), 7 December 1995, page 4482, Ms Allan (Blacktown - Minister for the Environment). https://www.parliament.nsw.gov.au/prod/parlment/hanstrans.nsf/V3ByKey/LA19951207?open&refNavID=HA7_1 131 Section 3 (b) TSC Act. 132 Section 3 (a) TSC Act. 133 Consider for example, decisions pertaining to license applications whereby the Director General must in Section 97, in considering whether to grant or to refuse to grant a licence application, take into account amongst other things, any species impact statement. In addition, subsection (2) provides that the Director General must also consider, \u00E2\u0080\u009Cthe likely social and economic consequences of granting or refusing to grant a licence application.\u00E2\u0080\u009D \t \u00C2\u00A0\t \u00C2\u00A0 39\t \u00C2\u00A0control process,134 such that the TSC Act has been described as \u00E2\u0080\u009Cprimarily a strategic document designed to identify management priorities for the conservation of the biodiversity,\u00E2\u0080\u009D135 and is effectively a tool that forms part of the apparatus for managing frequently competing interests. The operation of species conservation law and its effect in potentially acting as a constraint on development approval, is illustrated in the relatively recent decision of Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48, which, inter alia, applies and interprets provisions of the TSC Act. Speleological Society concerned an appeal by an objector against the grant of development consent to a limestone quarry and the extraction of 2.4 million tones of limestone over thirty years, on land featuring the endangered ecological community of White Box Yellow Box Blakely\u00E2\u0080\u0099s Red Gum Woodland (the White Box EEC) and habitat of the threatened species commonly known as the Squirrel Glider. Two of the issues in the appeal concerned threatened species, namely impacts on surface ecology and on cave dwelling fauna.136 In relation to the surface ecology issues, the applicant contended the proposal was likely to significantly effect the White Box EEC and the squirrel glider habitat so as to require a species impact statement (SIS) to accompany the development application by reason of a provision of the EPA Act.137 The effect of this provision being a jurisdictional fact was that the existence of this fact and accompanying need for an SIS operated as a precondition to the power to grant development consent. Essentially if this fact existed, the lack of a SIS for gauging impact on the EEC would invalidate the development consent. After favourably determining the threshold issue of whether the vegetation on the project site constituted White Box EEC consistent with the description in the final determination of the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0134 Of the EPA Act. See Ms Allan, supra note 130. 135 Bateman, supra note 129. 136 Speleological Society at para 28. 137 Namely, s 78A (8) (b) of the EPA Act. Speleological Society at para 29. \t \u00C2\u00A0\t \u00C2\u00A0 40\t \u00C2\u00A0TSC Act\u00E2\u0080\u0099s Scientific Committee to list the White Box Yellow Box Blakely\u00E2\u0080\u0099s Red Gum Woodland as an endangered ecological community,138 the Court found that the jurisdictional fact was not established.139 That is, the development was not likely to significantly impact the White Box EEC. As such, there was no need for an SIS and accordingly, the applicant\u00E2\u0080\u0099s challenge to the decision on this ground failed. Such cases illustrate that impact on threatened species can operate as a hurdle to achieving development approval. Similarly, in duty to consult litigation, impact on asserted or established aboriginal rights can be sufficient to quash approval absent adequate consultation. As such, the mechanics of duty to consult challenges, as another application of administrative law principles, do not constitute a difficult cognitive leap. Rather, they merely involve comparable principles being applied to different subject matter. The cognitive transition that I have experienced, relates to seeking to comprehend a relationship with the natural world that characterizes certain Indigenous legal traditions, and being absent the legal traditions with which I practised, constitutes a different normative universe. As suggested above, the principal purpose for implementing the TSC Act, was concern with statistical loss of species, the fact of Australia having \u00E2\u0080\u009Cthe worst rate of mammal extinction rates in the world.\u00E2\u0080\u009D140 I suggest one can read into the TSC Act and the regime it supports, an anthropocentric paradigm for viewing the world. That is, broadly speaking, one in which humankind is the central element of existence with the animal or \u00E2\u0080\u009Cother than human\u00E2\u0080\u009D or natural world, inferior. Several references within the Bill\u00E2\u0080\u0099s second reading speech suggest this \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0138 id at para 42. 139 id at para 118. 140 See Ms Allan, supra note 130. \t \u00C2\u00A0\t \u00C2\u00A0 41\t \u00C2\u00A0understanding.141 For example, I note the Environment Minister\u00E2\u0080\u0099s closing invitation, \u00E2\u0080\u009C\u00E2\u0080\u00A6more than two centuries after Europeans began to make their indelible mark on this unique country, let us begin a process of recovery and restoration ...this Government seeks only a commitment from across the community to pass on to future generations an environment and its natural heritage, at least as rich as that left to us.\u00E2\u0080\u009D142 Similarly, earlier in this invocation the Minister alluded to the beneficiaries of the Act as being \u00E2\u0080\u009Cthis State\u00E2\u0080\u0099s plants and animals.\u00E2\u0080\u009D143 Explicit within these references, is an understanding of flora and fauna or the natural world, as something that humanity owns and manages as a thing that is able to be passed on, and a need to protect it for the sake of humanity or the benefit of the State.144 Perhaps I make too much of such language and references as indicative of an anthropocentric paradigm and relationship with the animal or other than human world. While this is arguable, at the least, this speech and others supporting subsequent amendments to the Act,145 as well as the substantive content of the Act \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0141 That is, the Second Reading speech to the Threatened Species Conservation Bill (No. 2). 142 Ms Allan, supra note 130. Emphasis added. 143 \u00E2\u0080\u009CUnfortunately for this State's plants and animals, the previous Government's masterful inactivity turned that gap into a yawning chasm.\u00E2\u0080\u009D See Ms Allan supra note 130. Emphasis added.\t \u00C2\u00A0144 For example, the Prologues and other segments of several International legal treaties arguably discuss the need to preserve the environment for the benefit of human beings. See for example, Principle One of the Rio Declaration which provides, \u00E2\u0080\u009CHuman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.\u00E2\u0080\u009D Rio Declaration on Environment and Development, 14 June 1992, UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (1992) 145 Rather, the impetus for conservation efforts explicit in the Second Reading speech to the Biodiversity Banking Bill which amended the TSC Act to provide for the insertion of the BioBanking Scheme, was to balance and manage the competing economic interests in development and loss of biodiversity, particularly, large \u00E2\u0080\u009Cpatches\u00E2\u0080\u009D of biodiversity: \u00E2\u0080\u009COur objective is to move biodiversity conservation beyond the unproductive and frequently caricatured battles between housing and an endangered snail or between a shopping centre and an orchid. We are bringing forward a system that creates the flexibility to allow for good development results and biodiversity conservation.\u00E2\u0080\u009D Again, the notion of human ownership of biodiversity is implicit in references such as, \u00E2\u0080\u009CUnfortunately, most of Western Sydney's unique species are now extremely rare due to the massive changes caused by clearing and by changed hydrological regimes from dam construction\u00E2\u0080\u00A6\u00E2\u0080\u009D See NSW, Legislative Assembly, Hansard, Second Reading Speech to the Threatened Species Conservation Amendment (Biodiversity Banking) Bill, 8 June 2006, Mr Bob Debus (Blue Mountains \u00E2\u0080\u0093 Attorney General, Minister for the Environment and Minister for the Arts). \t \u00C2\u00A0\t \u00C2\u00A0 42\t \u00C2\u00A0itself, betray no inkling of a relationship with threatened species as being an impetus for conservation efforts. The further cognitive divide I have crossed is that I worked in a legal context where there were no Aboriginal rights at play or anything equivalent to an Aboriginal right due to the absence of Aboriginal rights in the Australian Constitution. Consequently, there was no area of \u00E2\u0080\u009CAboriginal law\u00E2\u0080\u009D interpreting any such provisions. Rather, conservation of species and native vegetation was frequently the primary issue.146 Having no prior knowledge of the concept of Aboriginal rights, one of my preconceptions was that environmentalists and Aboriginal peoples were allied in their interests and efforts. Discovering that frequently their respective interests conflicted proved quite a realization.147 In summary, I have experienced a transition in normative universes from one in which emphasis was placed on species conservation motivated by concern for loss of biological diversity and the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0146 Despite the absence of constitutionally protected Aboriginal rights per se, State legislation provides exceptions to offences applicable to non Aboriginal persons so as to permit Aboriginal peoples to carry out traditional activities. See for example, section 117 (2) of the NPW Act which provides that the restriction on the picking or possession of native plants, does not apply \u00E2\u0080\u009Cin relation to the picking or possession of a protected native plant in a nature reserve or wildlife refuge or in lands reserved or dedicated under Part 4A by an Aboriginal owner on whose behalf the lands are vested in an Aboriginal Land Council or Councils under that Part or any other Aboriginal person who has the consent of the Aboriginal owner board members for the lands for purposes referred to in section 57 (7).\u00E2\u0080\u009D Accessed 26 March 2014. Moreover, despite the lack of constitutionally protected Aboriginal rights, the Australian Federal Parliament has taken steps towards facilitating the formal recognition of Aboriginal peoples as Australia\u00E2\u0080\u0099s first peoples within the Australian Constitution. This is by way of the Aboriginal and Torres Strait Islander Peoples Recognition Act, 2013 (Cth), which provides, in section 5, a two year period in which Australians may approve a referendum to amend the Constitution so as to recognize Aboriginal and Torres Strait Islander Peoples as Australia\u00E2\u0080\u0099s First Peoples. See in relation to the Bill, http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1213a/13bd074. I note that at a Federal level, Native Title may be established through the process provided for in the Native Title Act. By virtue of having worked exclusively with State and Local Government law, I have not had any experience with this regime. 147 In West Moberly the Aboriginal petitioners worked with the assistance of a public interest Environmental Non Governmental Organisation and bolstered their primary treaty right argument with species conservation concerns. However, this amalgamation of more traditionally distinct \u00E2\u0080\u009Cenvironmental\u00E2\u0080\u009D and \u00E2\u0080\u009CAboriginal\u00E2\u0080\u009D concerns does not always occur. \t \u00C2\u00A0\t \u00C2\u00A0 43\t \u00C2\u00A0accompanying impact for humanity, to a world in which sustainable use of the natural world, its flora and fauna occurs as part of sustaining a way of life. In addition, animals are \u00E2\u0080\u009Clike friends,\u00E2\u0080\u009D148 and a more egalitarian relationship with the \u00E2\u0080\u009Cother than human world\u00E2\u0080\u009D exists. This is not a relationship in which humans are dominant over nature and adapt it to suit their needs, and perhaps it is not quite the inverse. At the least, it is a more respectful relationship. In essence, I have sought to understand a legal system and worldview that thinks differently about the relationship between humans and the natural world. However, I note that this has not been a difficult cognitive transition and is not so much a new \u00E2\u0080\u009Creality,\u00E2\u0080\u009D as, as an advocate for the deep ecology school of thought I am amenable to this cognitive and epistemological shift.149 Indeed, it provoked my interest in climate change law and decision to abandon the relatively anthropocentric native vegetation and threatened species area of law in favour of areas that require appreciation of metaphysical and other variables. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0148 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009), Citing Catherine Dokkie at 65. 149 Coined by Arne Naess to describe the deeper, more spiritual approach to nature exemplified in the writings of Rachel Carson, the essence of Deep Ecology is to keep asking more searching questions about human life, society and nature as in the Western philosophical tradition of Socrates. As distinct from the relatively shallow approach of scientific ecology, deep ecology goes beyond the factual, scientific level to the level of self and earth wisdom. Deep Ecology sharply contrasts with the dominant worldview of technocratic, industrialized societies, which regards humans as fundamentally separate from the rest of Nature, and as superior to it. Central tenets of deep ecology include the dissolution of boundaries between human and non-human existence. Namely, the idea that we can make no firm ontological divide in the field of existence. That there is no bifurcation in reality between the human and the non-human realms. Similarly, the principle of Biocentric Equality provides that all things in the biosphere are equal and have equal rights to reach actualization of their respective existences. The well being and flourishing of human and non human life, have value in and of themselves. That is, their value is independent of any use for humans. It follows that if we harm the rest of nature, we are harming ourselves. See Bill Devall and George Sessions, Deep Ecology, cited in Craig Hanks (Editor) Technology and Values: Essential Readings (Malden, MA: Wiley-Blackwell, 2010) at 455-456.\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 44\t \u00C2\u00A02.4 Voice A related concern and something that scholars have critiqued is the difficulty and effect of speaking for others. For example, in the context of examining anthropologist Hugh Brody\u00E2\u0080\u0099s representation of Dunne Za voices in Maps and Dreams, Sophie McCall draws attention to the impact of voice upon the delivery of material and its effect, a phenomenon she terms, the \u00E2\u0080\u009Cpolitics of voice.\u00E2\u0080\u009D150 McCall emphasizes the need for the voices of Aboriginal participants to be heard, as distinct from being funnelled through the medium of non-Aboriginal researchers and slanted in such a way that the contribution of the persons being researched is overshadowed by the work of the ethnographer. She notes these are mediated voices, 151 and highlights the role of the intermediary\u00E2\u0080\u0099s voice and perspective upon the subsequent communication presented.152 This concern is less relevant in this project as I am not acting as a mediator as a researcher. Nevertheless, I am still producing a translation. As such, I cannot ignore the potential impact of my voice and must be mindful of the need to represent the Dunne Za voices I am referencing as faithfully as possible, within the worldview that produced them. 2.5 Reliability of sources Having decided that it is appropriate to proceed, wearing the hat of an historian and applying this training to anthropological accounts of the Dunne Za, several salient concerns in relation to these sources are worthwhile appreciating. I rely upon the work of Pliny Goddard, Diamond Jenness, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0150 Sophie Mc Call, First Person Plural: Aboriginal storytelling and the ethics of collaborative authorship (Vancouver: UBC Press 2011) at 44. 151 id at 45. 152 Mc Call declares while researchers have the best of intentions \u00E2\u0080\u009Cto expose injustice and give voice to marginalized Aboriginal groups,\u00E2\u0080\u009D \u00E2\u0080\u009Cthey sometimes overlook their own role as mediators in cross cultural dialogues and exchanges.\u00E2\u0080\u009D ibid. \t \u00C2\u00A0\t \u00C2\u00A0 45\t \u00C2\u00A0Robin Ridington and Hugh Brody. I envisage a hierarchy of relevance of these sources that is based upon certain criteria. Such criteria include: a) What is the purpose of the source? b) How long did the author spend with the Dunne Za? c) Is it a one off study, a longitudinal study or a longer-term study, or did the author complete multiple studies? d) When was it written? How advanced was the anthropology at that time? e) How long after the study or fieldwork was the report written? By asking these questions, as one might when conducting a voir dire on the admissibility of evidence, I seek to evaluate the relative weight, persuasiveness and authority of the sources, as well as the risks associated with reliance upon them. A separate but related point to consider as part of this evaluation is whether the source pertains to the Beaver Indians or to the neighbouring Sekani Indians. That is, is the source directly relevant? Dealing first with whether or not the sources pertain directly to the Beaver Indians, I note that Anthropologist Diamond Jenness wrote about the neighbouring Sekani Indians of British Columbia as distinct from the Beaver Indians per se. Do I then discount this material as not being directly relevant? The expert report of Anthropologist Dr Wendy Aasen that the petitioners relied on in support of their submissions to the Supreme Court of British Columbia, notes \u00E2\u0080\u009Cthe term Mountain Dunne Za is used to describe Beaver and Sekani Indians who utilized resources in and around the Rocky Mountain region. It reflects the mixed nature of the Beaver Sekani of Hudson\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0 46\t \u00C2\u00A0Hope.\u00E2\u0080\u009D153 Further, the Aasen Report cites from Jenness and provides, \u00E2\u0080\u009Cwe know very little about the early customs of the Beaver, except that they did not differ greatly from the Sekani.\u00E2\u0080\u009D154 Similarly, Ridington declares it is helpful to envisage \u00E2\u0080\u009Ctheir social groups as having been like a series of partially overlapping circles.\u00E2\u0080\u009D155 In addition to these corroborating anthropological accounts, it is helpful to bear in mind that the division into bands is a construction of the Indian Act, 1876,156 and that prior to the Indian Act\u00E2\u0080\u0099s delineation, there was greater homogeneity.157 Jenness too seems to acknowledge this. He informs us \u00E2\u0080\u009Cnot many centuries ago the Sekani and Beaver were one people divided into many Bands which differed little in language and customs.\u00E2\u0080\u009D158 As such, it seems safe to conclude that sources pertaining to the Sekani Indians are helpful for my purposes and ought not be discounted. Jenness Returning to the questions of relevance, reliability and limitations of the sources, applying my criteria to the work of anthropologist Diamond Jenness, I note that Jenness wrote this document at the behest of government in that it is produced for Canada\u00E2\u0080\u0099s Department of Mines and Resources. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0153 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, The Aasen Report. \u00E2\u0080\u009CThe Importance of Caribou to the Mountain Dunne Za (Beaver Sekani Indians) of the Upper Peace Region of British Columbia\u00E2\u0080\u009D 22 October 2009 at 2, Exhibit B to the Affidavit of Dr Wendy Aasen sworn 29 October 2009). Emphasis added. 154 Diamond Jenness, The Indians of Canada, (Toronto, Buffalo: University of Toronto Press, 1977) at 383 cited in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, The Aasen Report. \u00E2\u0080\u009CThe Importance of Caribou to the Mountain Dunne Za (Beaver Sekani Indians) of the Upper Peace Region of British Columbia\u00E2\u0080\u009D 22 October 2009 at 2, Exhibit B to the Affidavit of Dr Wendy Aasen sworn 29 October 2009) at 5. 155 Robin Ridington, \u00E2\u0080\u009CBeaver,\u00E2\u0080\u009D in Handbook of North American Indians: Subarctic. Volume 6, (Washington D.C.: Smithsonian Institute, 1981) at 350. Cited in Aasen supra note 153 at 6. 156 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18. 157 Specifically, the Department of Indian Affairs and Northern Development and its equivalent, had and has responsibility for division of Aboriginal communities into Bands under the Indian Act, RSC 1985, c 1-5. See the current section 17 which empowers the Minister for Indian Affairs and Northern Development to create new Bands. 158 Diamond Jenness, The Sekani Indians of British Columbia (Ottawa: J. O. Patenaude, 1937) at 6-7. \t \u00C2\u00A0\t \u00C2\u00A0 47\t \u00C2\u00A0As to the length of time spent with the Dunne Za, Jenness visited McCleod Lake in the summer of 1924 and spent only three weeks with the community. His was not a longitudinal study but rather, a one off visit. Perhaps the greatest caveat with this source is that it was written in 1937. I question what the prevailing government policy towards Aboriginal peoples was at this time. If it was still one of assimilation with intended genocide as its fundamental goal, then it seems legitimate to question the reliability of this source, and secondly, to inquire as to its independence. Are there any prejudices, agendae, or influential policy considerations governing its content? Jenness\u00E2\u0080\u0099 work contains useful chapters on social order and what he terms, religion. However, a Eurocentric view seems apparent for example, in the repeated imagery of primitive natives,159 which can lead to the inference that they needed to be civilized. I speculate whether this was an intention.160 Finally, I note that Jenness\u00E2\u0080\u0099 work was written with a considerable time gulf of thirteen years separating it from his fieldwork. Against these concerns, Borrows seems to rely on Jenness without caution.161 Moreover, Ridington also comments positively on the work of Diamond Jenness.162 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0159 For example, describing the Beaver and Cree, Jenness notes, \u00E2\u0080\u009CThe routes to the eastward led to the Beaver and Cree Indians, who were not only hostile, but nearly as primitive as the Sekani themselves. The Kaska to the north contributed nothing to their welfare; those first cousins were even lower than themselves on the scale of civilization.\u00E2\u0080\u009D id at 3. Emphases added. Further in describing the influence of monotheism, Jenness\u00E2\u0080\u0099 juxtaposition of \u00E2\u0080\u009Cminds to gross to be converted\u00E2\u0080\u009D with \u00E2\u0080\u009Cour worthy chief,\u00E2\u0080\u009D is illuminating. He provides, \u00E2\u0080\u009CThe new doctrine of monotheism received a powerful impetus from Oregon, where the teachings of the first missionaries\u00E2\u0080\u00A6produced an amazing Messianistic craze that spread northward up Fraser river through the Shuswap to the Carrier, whom it reached about 1830. \u00E2\u0080\u00A6As to the doctrines of our holy religion, their minds were too gross to comprehend, and their manner too corrupt to be influenced by them. They applied to us for instruction and our worthy chief spared no pains to give it...\u00E2\u0080\u009D id at 64. Emphases added. 160 Historically, such propaganda is far from novel. See for example accounts of the expansion of the Roman Empire to colonies in Briton, Gaul, Bythinia et cetera, and the need to spread civilization and to an extent, urbanitas (refinement, sophistication) in the works of Catullus, Tacitus and Cicero amongst others, through the necessary stage of conquest. \t \u00C2\u00A0161 For example in describing Carrier legal traditions, Borrows relies upon and draws inferences from, stories heard by Jenness that taught lessons in relation to the proper treatment of salmon. Borrows provides, \u00E2\u0080\u009CKungax reinforce the rules governing the proper treatment of salmon by providing commentaries about consequences for mistreatment. The Kungax not only provides precedent to guide future behaviour, it also creates strong feelings that motivates and encourages listeners to properly meet their obligations to the salmon.\u00E2\u0080\u009D \t \u00C2\u00A0\t \u00C2\u00A0 48\t \u00C2\u00A0In conclusion, although the initial submission makes frequent reference to the work of Jenness, which is most useful for its references to the mystic bond with caribou, I defer to Ridington to explain the cosmology of the Dunne Za, and, as to the seasonal round, I use Jenness only secondarily, so as to bolster and thereby, add credibility to Brody\u00E2\u0080\u0099s work. Accordingly, due to my limited reliance upon this source I am not too concerned with the cautions I have identified with it. Brody The work of anthropologist Hugh Brody was not written for the same purpose as that of Jenness. Brody, whom the initial submission identifies as a cultural geographer, is perhaps the most influential or at least the most well known of the anthropologists who have conducted fieldwork in Treaty 8. Amongst other reasons he conducted this work to explore and then articulate the Aboriginal interests in the area. His research for the Union of British Columbia Indian Chiefs with the Beaver Indians of Treaty 8 in the late 1970s yielded the seminal work, Maps and Dreams in 1981, in which he presents, in alternating chapters, both a social scientific analysis as well as a personal narrative of his time spent in the Athapaskan territory. In his even numbered chapters, Brody records re-writings of a land use and occupancy study that he prepared for the Union of British Columbia Indian Chiefs, which aimed to gather evidence for a public hearing to oppose the construction of a natural gas pipeline along the Alaska Highway by the Northern Pipeline Agency. 163 This land use study is most famous for presenting Brody\u00E2\u0080\u0099s \u00E2\u0080\u009Cindividual map \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 Borrows deduces from these accounts important features of the Carrier legal system. Namely, that feelings are an important part of the law and that reason is not separate from emotion in making decisions and taking action. See Borrows, supra note 80 at 93. 162 He comments for example, \u00E2\u0080\u009CDiamond Jenness must have been a magnificent fieldworker for the descriptions he gives us of the Indian worlds he visited are rich in the kind of detail only a trusted and sympathetic friend would be told.\u00E2\u0080\u009D Robin Ridington Little Bit Know Something, Stories in a Language of Anthropology, (Iowa: University of Iowa Press, 1990) at 52. 163 Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at xxii. \t \u00C2\u00A0\t \u00C2\u00A0 49\t \u00C2\u00A0biographies,\u00E2\u0080\u009D namely his research methodology in which he had Dunne-Za men and women from reserves in the area, create maps by drawing their hunting, gathering and fishing routes in Dunne-Za territory on top of a standard ordinance survey grid.164 These individual map biographies are highly personal translations of land, which translate both land as well as \u00E2\u0080\u009Ca people\u00E2\u0080\u0099s way of expressing their historical and ongoing relationship with\u00E2\u0080\u009D it.165 They have the effect of illustrating an intensive use and occupation of the land. In doing so, they refute that the land is terra nullius, and assert instead that it is deeply inscribed with conflicting histories.166 Brody\u00E2\u0080\u0099s work and the mapping exercise, demonstrated that there are Aboriginal interests to reject the acquisition of land as being unoccupied and without legal interests, and to meet the prevailing challenge at the time, namely the prospect of resources infrastructure that would encroach upon and impair the exercise of treaty protected rights. Such was the primary purpose of Brody\u00E2\u0080\u0099s work. Brody spent two years with the Beaver Indians to produce his study. Brody\u00E2\u0080\u0099s was a one off study.167 Brody published his book in the early 1980s, and shortly after his fieldwork of the late 1970s. Significantly, at the time of his writing, North \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0164 McCall, supra note 150 at 68. 165 id at 72. 166 id at 69. While McCall uses the term terra nullius, this should not be confused with the application of this doctrine in Australian law. Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 established that the doctrine of terra nullius did not have application in Australian law. In Canada, this doctrine was never required to be undone. 167 Mr Bruce Muir, former land use manager for the West Moberly First Nation of seven years, and whose expertise I am thankful for, warned to be careful with mentioning Brody\u00E2\u0080\u0099s work in any potential interviewing. This was due to the fact that Brody was not liked by some owing to his research practice of having gone into the community, carried out his land use and occupancy study and not returned or given anything back to the communities in the future. Personal communication, August 2012. \t \u00C2\u00A0\t \u00C2\u00A0 50\t \u00C2\u00A0East British Columbia was merely a dream of mining and resource exploitation companies.168 One can certainly not say the same now. Brody\u00E2\u0080\u0099s work is an ethnography, a cultural translation,169 whose reliability is strengthened by the fact that he writes with the first hand experience of having participated in the seasonal round with the Beaver Indians. However, it is relatively old anthropology. Brody\u00E2\u0080\u0099s work was carried out over 30 years ago and prior to the constitutional protection given to treaty rights in 1982. At the time of his work, the Beaver Indians possessed treaty rights that were formalized in 1899.170 However, these rights did not enjoy constitutional protection from offending government legislation. As such, it occurred in a rather different legal context. Brody speaks of the Beaver Indians generally and sometimes specific First Nations, but never the West Moberly First Nation. However, the initial submission notes that Brody interviewed members of the West Moberly First Nation as well as of other First Nations.171 As such, while Brody\u00E2\u0080\u0099s work is not specific to the West Moberly First Nation per se, but rather, cumulatively to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0168 At the time of his writing, Brody narrated in explanation of his book\u00E2\u0080\u0099s title, \u00E2\u0080\u009Cat the same time, the region is more and more a focus of dreams about new sources of energy and unparalleled industrial development. North East British Columbia is a route and a resource: a place for White men to dream about.\u00E2\u0080\u009D See Brody, supra note 163 at 29. By acute contrast presently there are over 18 000 wells in British Columbia and nearly 350 active wells in the vicinity of the Doig River First Nation alone. Treaty 8 contains the second largest hydrocarbon deposit on earth with the Western Canadian sedimentary basin valued at over half a trillion dollars in bitumen alone. With the amount of over-tenuring in North East British Columbia, it certainly no longer seems merely a dream of resource developers. I owe these statistics to Mr Caleb Behn who cites information from the Public Health Officer of 2007. See Caleb Behn, \u00E2\u0080\u009CIndigenous Law as a Solution to Resource Conflict in Treaty 8,\u00E2\u0080\u009D Presentation co hosted by Lawyers Rights Watch Canada, delivered at the Vancouver Public Library, 28 February 2013. 169 I am grateful to PhD candidate Ms Brenda Fitzgerald for the brief conversation we had regarding Brody\u00E2\u0080\u0099s work, and her anthropological perspective. 170 The treaty rights of the West Moberly First Nation were formalized in 1914, when it adhered to Treaty 8 as the Hudson\u00E2\u0080\u0099s Hope band. 171 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009) at 61. \t \u00C2\u00A0\t \u00C2\u00A0 51\t \u00C2\u00A0the Dunne Za which includes the West Moberly First Nation, it would be false to conclude that variations unique to the West Moberly First Nation are not acknowledged. Ridington Professor Ridington has spent over 40 years working with the Dunne Za and has produced several texts that document his ethnographic work .172 I rely principally on Little Bit Know Something, which the initial submission cites, for its detailed explanation of the cosmology of the Dunne Za and what might be termed, spiritual way of life.173 Such explanation and emphasis is absent other anthropological authors. Little Bit Know Something is a collection of academic papers that Ridington wrote between 1968 and 1989174 based upon what he learned \u00E2\u0080\u009Cabout learning in an Indian way\u00E2\u0080\u009D175 from having camped with Dunne Za members Jumbie and his wife, Saweh, Johnny and Julie Chipesia, and Sam and Jean St Pierre in the summers of 1964-1969 in the Peace River country.176 Ridington declares that the purpose of this work was \u00E2\u0080\u009Cto understand the cultural psychology of people who lived by hunting.\u00E2\u0080\u009D177 In contrast to the work of Jenness and other anthropologists, Ridington has spent considerable time working with the Dunne Za. Ridington\u00E2\u0080\u0099s work is valuable in part because of his extended contact with the Dunne Za. He first met the Dunne Za in 1959 where as a young anthropologist, his need for scientific data contrasted with a Dunne Za man \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0172 See Robin Ridington and Jillian Ridington in collaboration with Elders of the Dane-Zaa First Nations, Where Happiness Dwells: a history of the Dane-Zaa First Nations, (Vancouver: UBC Press, 2013) at 1, 2 and 9 where they note that this most recent book is a celebration of fifty years of friendship. 173 See Ridington, supra note 162. 174 id at xiii. 175 id at x. 176 ibid. 177 id at 6. \t \u00C2\u00A0\t \u00C2\u00A0 52\t \u00C2\u00A0Chickadee\u00E2\u0080\u0099s need for the \u00E2\u0080\u009Cwind, stars, moose meat and his language.\u00E2\u0080\u009D178 Having dedicated so many years to working with the Dunne Za, his work speaks with much authority. Moreover, he has worked with the Dunne Za on multiple occasions. However, the credibility and historical value of Ridington\u00E2\u0080\u0099s work derives not merely from its longevity, but also from being based upon the personal experience and relationships he has forged with members of the Dunne Za. As Ridington recounts, he was \u00E2\u0080\u009Cimmensely privileged to be among the outsiders with whom Dunne Za elders shared their knowledge\u00E2\u0080\u009D and to have \u00E2\u0080\u009Cexperienced something of the world that hunting people brought from ancient times to the present.\u00E2\u0080\u009D179 He speaks of having gained insights into \u00E2\u0080\u009Can empowering \u00E2\u0080\u009Ccultural intelligence\u00E2\u0080\u009D that evolved as we humans perfected the arts of living with one another and with the non human persons of a country that is itself alive.\u00E2\u0080\u009D180 However, Ridington\u00E2\u0080\u0099s work is based on fieldwork with the Doig and Blueberry River First Nations and not the West Moberly First Nation. Consequently, one could suggest that it is not entirely on point as regards the way of life of the West Moberly First Nation. Nevertheless, given what I have said earlier about the imposed division of the Dunne Za into differing Bands being a relatively recent product of the Indian Act , it is perhaps wrong to make too much of this distinction. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0178 id at 7. 179 id at xiv. 180 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 53\t \u00C2\u00A0Goddard The earliest anthropological source upon which I rely and which the initial submission references, is that of Pliny Earle Goddard.181 Goddard\u00E2\u0080\u0099s work consists of some brief ethnological notes to which attach several stories, some of which the initial submission cites. I read Goddard\u00E2\u0080\u0099s notes for guidance as to the interpretation of these stories and the teachings, law, and insight into the Dunne Za worldview they might contain. However, such guidance was not particularly forthcoming and these notes were not particularly useful for a few reasons. First, the purpose for which I am seeking to use Goddard\u00E2\u0080\u0099s notes does not align with their primary purpose. Goddard\u00E2\u0080\u0099s ostensible purpose was not to conduct an ethnographic study. Rather, he declared that he \u00E2\u0080\u009Csecured the few ethnographic notes presented here mostly incidentally to the linguistic work and the collecting of specimens.\u00E2\u0080\u009D182 Other limitations and factors that bear upon the historical value of this source for my purpose include the limited length of time spent with the Dunne Za. Goddard \u00E2\u0080\u009Cvisited the Beaver of Fort St John and Dunvegan in late August / September\u00E2\u0080\u009D183 of 1913. It was a one off study. Goddard\u00E2\u0080\u0099s work was published three years after his study of 1913, in 1916. It is the earliest anthropological source that the initial submission references. In common with the work of Jenness, a Eurocentric view seems apparent. Goddard employs similar \u00E2\u0080\u009Cscale of civilization\u00E2\u0080\u009D assessment language. For example, he describes the Rocky Mountain Indians, as \u00E2\u0080\u009Cin many respects\u00E2\u0080\u009D \u00E2\u0080\u009Cmore primitive than either of the other two groups.\u00E2\u0080\u009D184 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0181 Pliny Earle Goddard, \u00E2\u0080\u009CThe Beaver Indians\u00E2\u0080\u009D in Anthropological Papers of the American Museum of Natural History ,Volume X, Part II (New York: The Trustees, 1916). 182 id at 203. 183 ibid. 184 id at 208. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 54\t \u00C2\u00A0As to its substantive content, there is no explicit annotation or attempt at commentary or explanation of the stories. The notes and stories are discrete. Goddard\u00E2\u0080\u0099s notes contain scant reference to the cosmology and any relationship with what Goddard terms the supernatural world. For example, one brief detail that he does include merely states, \u00E2\u0080\u009Chunters whose success was attributed to supernatural power or, to what really amounts to the same thing, a supposed inclination of the moose towards the hunter.\u00E2\u0080\u009D185 These brief references arguably sustain the accounts provided by Jenness186 and Ridington, albeit, in substantially less detail. Applying all of these criteria, I find that Ridington\u00E2\u0080\u0099s is the most reliable and leading authority, chiefly because he has spent over 40 years working with the Dunne Za and has carried out multiple studies. Consistent with what I said above about the methodology being analogous to a fact finder\u00E2\u0080\u0099s reliance upon circumstantial evidence in lieu of sufficient direct evidence to reach inferences and draw conclusions, the above \u00E2\u0080\u009Cvoir dire\u00E2\u0080\u009D hierarchical ranking of the relevance of sources is also akin to the approach of an archaeologist piecing together a story from many fragments, some of which have greater reliability than others. With all these caveats in mind, as I set out in the following chapter, I have derived from these accounts what I perceive to be the following principles of Dunne Za law. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0185 id at 215. 186 See for example Jenness\u00E2\u0080\u0099 substantial detail as to the mystic bond with Caribou: Jenness supra note 158 at 64-72 in which he describes the Sekani \u00E2\u0080\u009Cbelief that man and the animal world are linked together in some mysterious way, and that the animals possess special powers which they may grant to man if he seeks them in the proper manner.\u00E2\u0080\u009D \t \u00C2\u00A0\t \u00C2\u00A0 55\t \u00C2\u00A03. Indigenous legal traditions of the Dunne Za In the following chapter I identify both principles and practices of Indigenous law of the Dunne Za that derive from the initial submission of the petitioners. Comparable with a governance regime consisting of legislation and policy implementing it, the submission appears to identify principles and norms, and practices implementing these. I commence with an outline of the most complex of the identified Indigenous laws, the traditional seasonal round of the Dunne Za. I identify substantive and procedural components to decision making pursuant to this land management regime for maintaining balance and order. Following this, I examine the moratorium of the West Moberly First Nation, which lacks the complexity of the seasonal round. Thirdly, I examine the principle of respect as a distinct legal principle. I complete this chapter by examining law sourced in the oral histories of the Dunne Za. In relation to the sources upon which I rely, I have divided my analysis of Dunne Za law between sources. I first address the initial submission which was before the mining decision makers, some of which the submissions to the Supreme Court of British Columbia sustain. While the Initial submission has been my primary reference point for identifying Dunne Za law, I have referred to the work of anthropologists which the initial submission references, in order to supplement and thereby comprehend, the snippets of detail that the initial submission provides. Secondly, I attempt to grapple with extracting legal principles from some of the oral histories or stories, which were noted in the initial submission to varying degrees187 and which were therefore before the decision \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0187 The initial submission notes, cites and refers to the oral histories to varying extents. For example, at page 45, it refers to a story told by Jumbie, however, it does not extract this story. Elsewhere it contains segments of some of the oral histories as well as noting concisely their respective lessons and themes. See West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009) at 53-54. \t \u00C2\u00A0\t \u00C2\u00A0 56\t \u00C2\u00A0makers. However, there seems to be overlap. Some legal principles appear to infuse both the submission and the stories. As such, some of the principles identified in the stories are not discrete and serve to reinforce laws enunciated in the submissions. I speculate that much of the legal authority for principles in the submissions derives from principles contained in the stories. 3. 1 The Traditional Seasonal Round as a quasi land use planning regime One key legal tradition for the Dunne Za who are hunters and gatherers is the seasonal round. The submissions provide a broad outline of the operation of the traditional seasonal round. I defer to Brody and Ridington whose work elaborates upon aspects that the submissions merely allude to, particularly in relation to pertinent aspects of the traditional seasonal round that risk being under appreciated. The principal source of evidence on the traditional seasonal round as a land use regime comes from the work of Hugh Brody. At least some of Ridington\u00E2\u0080\u0099s work supplements certain components of Brody\u00E2\u0080\u0099s portrait to achieve a different emphasis.188 The work of anthropologist Diamond Jenness contains one small comment on the traditional seasonal round, which sustains Brody\u00E2\u0080\u0099s description. However, it does not add anything new to it. Of the anthropologists who have worked with the Dunne Za, Brody is the key source on the traditional seasonal round as a land use regime, due to the explicit purpose of his work, Through facilitating a land use and occupancy study that documented Aboriginal interests, Brody sought to compile material to combat the threat of encroachment upon treaty protected rights by proposed \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0188 Ridington details the spiritual aspect which Brody\u00E2\u0080\u0099s work does not emphasise. \t \u00C2\u00A0\t \u00C2\u00A0 57\t \u00C2\u00A0natural resources infrastructure. Brody spent two years with the Dunne Za, including members of the West Moberly First Nation,189 carrying out a land use and occupancy study had two main objectives: to demonstrate the extent of land use and to elucidate the people\u00E2\u0080\u0099s land use systems.190 Brody describes the source of his knowledge as to the traditional seasonal round from his land use and occupancy study, as such: The majority of the men and many of the women in 7 of the region\u00E2\u0080\u0099s 9 reserves drew maps of their land use. They also explained the seasonal round, shared knowledge, described changes over time, and indicated other aspects of land occupancy that underpin and interpret the information that they drew on their maps.191 The Indians of British Columbia made maps, explained their system, gave detailed information about their economy, and took us into the bush with them. They did so because they believe that knowledge of their system will result in an understanding of their needs, and that this in turn will help establish and protect their interests.192 Due to my training in town planning law and experience with interpreting and applying environmental planning instruments, I understand and analysed the traditional seasonal round as akin to a land use planning regime. This background has assisted my understanding.193 However, my understanding would be deficient if I relied purely on this legal training which relies upon knowledge based upon western science, and if I thereby failed to embrace the epistemological intricacies unique to the Dunne Za that characterize the seasonal round.194 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0190 Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at 148. 191 id at 149. 192 id at 177. 193 Which includes, for example, interpreting provisions of State Environmental Planning Policy (Seniors Living) 2004 as part of the task of amending the Native Vegetation Act 2003 by means of a Regulation amendment, namely, the Native Vegetation (Application of Act) Regulation, 2009. 194 Such as, differing comprehensions of time. \t \u00C2\u00A0\t \u00C2\u00A0 58\t \u00C2\u00A0Stated concisely, the traditional seasonal round involved hunters travelling \u00E2\u0080\u009Cto particular preferred areas within the Treaty territory during certain times of the year based on their knowledge of animal behaviour and distribution.\u00E2\u0080\u009D195 Brody\u00E2\u0080\u0099s diagram depicts these geographic and temporal variables.196 Similarly, the initial submission extracts some of the maps of hunting areas Brody helped coordinate, which illuminate their geographic scope.197 However, as I shall expand upon below, the traditional seasonal round was much more complex than merely featuring these two variables. Rather, it involved multiple constituent elements and characteristics, such that it would be wrong to dismiss it merely as comparable with a land use planning regime that delineates various zones in which certain uses are permissible, or what could be analogized with a three dimensional model.198 As Brody enunciates, \u00E2\u0080\u009Cthe people\u00E2\u0080\u0099s maps demonstrate the extent of Indian interest in the land, and are a starting point of any account of these accommodations. But they cannot do justice to the sophistication of an economic system involving varying patterns of movement at different times of the year, shifts from one kind of resource harvesting to another, and a knowledge of the land \u00E2\u0080\u0093 and its animals, whose richness is astounding.\u00E2\u0080\u009D199 This final feature, namely the traditional knowledge informing the seasonal round, is itself rich in its complexity and contains variables that defy an anthropocentric epistemology and a western comprehension of knowledge. It is such a central component of Dunne Za law that I explore the intricacies of its substance and procedural operation at length below. Before doing so, I comment \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0195 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Roland Willson) at para 5. Cited in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) at para 111. 196 See Brody, supra note 190 at 198, which depicts \u00E2\u0080\u009CFigure 2 The Indian Year, Pre-1960,\u00E2\u0080\u009D and what I interpret also portrays the geographic and temporal variables of the Dunne Za Traditional Seasonal Round.\t \u00C2\u00A0197 See Brody, supra note 190 at 41 which depicts one of Brody\u00E2\u0080\u0099s \u00E2\u0080\u009Cindividual map biographies\u00E2\u0080\u009D of the West Moberly hunting areas. 198 Due to the analogy with a three dimensional versus four dimensional world. 199 See Brody, supra note 190 at 190. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 59\t \u00C2\u00A0on what I perceive to be the most salient of the characteristics and features of the traditional seasonal round, and what I perceive could be under appreciated, through a failure to \u00E2\u0080\u009Clearn\u00E2\u0080\u009D or to try to learn, in the sense of being receptive to multiple ways of life and thoughtworlds,200 and instead, employing an anthropocentric lens of analysis that is not attuned to the particular metaphysical intricacies at play. Petitioner Willson described the traditional seasonal round as follows: We are Mountain Dunne Za people. Our treaty right includes our mode of life which is based on our traditional seasonal round which targets specific species during different times of the year in specific locations\u00E2\u0080\u00A6 Caribou are an integral part of the seasonal round of the West Moberly. \u00E2\u0080\u00A6 Our mode of life is part of defining who we are as an Aboriginal people. Our mode of life, based on the traditional seasonal round, connects us to our traditional territory through our use of the land and being out on the landscape.201 The seasonal round comprised a mixture of activities, namely five periods of activity: the fall dry meat hunt, early winter hunting and trapping, late winter hunting and trapping, the spring beaver hunt and the summer slack.202 Each of these has a distinct pattern and area of land use.203 Jenness\u00E2\u0080\u0099s portrayal of the seasonal round sustains the delineation of activities that Brody describes. He refers for example, to the summer slack as part of this round, which he describes as follows: The Sekani generally spent the period from about November until mid summer on the plateaux and mountain slopes, running down the Caribou and moose on the snow and when the snow had melted, driving them into snares and trapping groundhogs. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0200 I borrow the word \u00E2\u0080\u009Cthoughtworld,\u00E2\u0080\u009D from Ridington, in reference to the different ways of knowing and the cognitive shift that is necessary to comprehend differing ways of life. See Robin Ridington Little Bit Know Something, Stories in a Language of Anthropology, (Iowa: University of Iowa Press, 1990) at 10. 201 See the initial submission, supra note 187 at 82. 202 id at 43 citing Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981). See Brody, supra note 190 at 197 which depicts \u00E2\u0080\u009CFigure I The Indian Year: A Seasonal Round.\u00E2\u0080\u009D 203 Brody, supra note 190 at 191. \t \u00C2\u00A0\t \u00C2\u00A0 60\t \u00C2\u00A0About mid-summer they resorted to the lakes to fish, or visited the various tribes beyond their borders\u00E2\u0080\u00A6Eastward there was a route up the Ospika via Laurier pass.204 Describing one fifth of this round, namely the fall dry meat hunt and how mountain ecological zones were used, Brody provides: Most of the species hunted, especially Moose and deer, tend to be dispersed. In their hunting, men either follow the game\u00E2\u0080\u0099s seasonal movements, or they travel to areas where a specialized habitat supports particular species in abundance. In late summer and early fall, the bands split into small groups to begin the dry meat hunt. This is a period of dispersal to camps that may be as little as five and as much as 30 miles from summer locals. The people travel to areas, which based on their knowledge of animal behaviour and distribution and their understanding of the current population levels of the major resource species, they predict animals may be numerous enough to provide their winter supply of dry meat. Nor are these the same each year. At times of great need, when moose and deer populations are low, they may move to distant areas to hunt for mountain sheep and caribou.205 Brody\u00E2\u0080\u0099s description of the fall dry meat hunt evidences geographic fluidity in the seasonal round. It provides, \u00E2\u0080\u009Cnor are these the same each year. At times of great need when moose and deer populations are low, they may move to distant areas to hunt for mountain sheep and caribou.\u00E2\u0080\u009D206 In further support of the malleability of this conservation law, the relatively recent modification of the traditional seasonal round attests that the seasonal round and the hunting economy on the whole that it supports, has similarly morphed. Brody informs us: most of the bands moved into permanent housing on the Reserves in the early 1960s. From that time their pattern of residency can be said to have changed from semi-nomadic to semi-sedentary. The traditional seasonal round was modified. Those who continue to hunt and trap do so from a single, permanent base camp. But the animals harvested and the seasonality of the harvests \u00E2\u0080\u0093 the Indian year \u00E2\u0080\u0093 have stayed the same.207 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0204 Diamond Jenness, The Sekani Indians of British Columbia (Ottawa: J. O. Patenaude, 1937) at 2. 205 See the initial submission, supra note 187 at 43. Emphasis added. 206 See Brody, supra note 190 at 192 and cited in the initial submission, supra note 187 at 43. 207 Brody, supra note 190 at 194. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 61\t \u00C2\u00A0The petitioners\u00E2\u0080\u0099 submissions to the Supreme Court of British Columbia sustain the characterisation of the traditional seasonal round as an adaptive land use strategy that has evolved. These provide: West Moberly members continue to practice our traditional harvesting practices in areas within Treaty 8 territory that are best suited to our hunting and trapping needs. For example, hunting grounds close to our reserve are part of our preferred Treaty territory. Although these areas are sometimes called our \u00E2\u0080\u009Ctraditional territories\u00E2\u0080\u009D or \u00E2\u0080\u009Ctraditional hunting grounds,\u00E2\u0080\u009D those areas are really our \u00E2\u0080\u009Cpreferred territory\u00E2\u0080\u009D or \u00E2\u0080\u009Cpreferred treaty territory\u00E2\u0080\u009D because they are where we prefer to do our traditional hunting and trapping due to our present mode of life for example, living on our reserve or in nearby towns, rather than in camps on the land as we traditionally lived.208 From these extracts, it seems apparent that the traditional seasonal round is a legal tradition that remains alive and has evolved to adapt to changes including reserve delineation yielded by virtue of the Indian Act. Such flexible endurance is consistent with descriptions of the hunting economy per se as well as the way of life of the Beaver Indians, which Brody has described numerously as follows: \u00E2\u0080\u009CThe Aboriginal inhabitants of what is now North East British Columbia are the inheritors of one of the purest forms of hunting economy; purest in the sense that they are peoples who are flexible in the face of every changing circumstance.\u00E2\u0080\u009D209 Similarly, \u00E2\u0080\u009Ctheir knowledge and techniques grew and changed, as the variety of their cultures testifies. But some of the basic characteristics remained much the same, including the ever-present flexibility that is expressed in virtually every part of the system.\u00E2\u0080\u009D210 Finally, \u00E2\u0080\u009Chunters continued to practise their systems following ancient, though never static, patterns.211 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0208 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Roland Willson) at paras 6 and 7. Cited in West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) at para 457. 209 See Brody, supra note 190 at 85. 210 id at 28. 211 id at 35. \t \u00C2\u00A0\t \u00C2\u00A0 62\t \u00C2\u00A0A final feature of the seasonal round which Brody captures and which distinguishes it from non Dunne Za land use planning regimes,212 is its spontaneity. Brody provides, \u00E2\u0080\u009Ceverything about the Indian of North East British Columbia points to a readiness to change and to move; hunting techniques; clothing; spiritual and religious systems that govern relations among people and between the people and their land; reliance upon knowledge and skill (which of course are carried in the head).\u00E2\u0080\u009D213 Similarly, \u00E2\u0080\u009Ca readiness to adapt to new environments, to use different resources, and to seize new technological advances, has always been at the heart of Athapaskan culture.\u00E2\u0080\u009D214 The language describing the seasonal round suggests that certain themes are apparent as to its governance. Chief among these I interpret a conservation intent as one such purpose of the seasonal round. There are many references to a conservation objective as motivating the seasonal round. For example, \u00E2\u0080\u009Cin their hunting, men either follow the game\u00E2\u0080\u0099s seasonal movements, or they travel to areas where a specialized habitat supports particular species in abundance.\u00E2\u0080\u009D215 Such areas or zones are akin to a land use being permissible with or without consent, because the impact would not be devastating. It would not extirpate the species. Similarly, \u00E2\u0080\u009Cthe people travel to areas, which based on their knowledge of animal behaviour and distribution and their understanding of the current population levels of the major resource species, they predict animals may be numerous enough to provide their winter supply of dry meat.\u00E2\u0080\u009D216 In a similar vein, the following comment suggests that a sustainable approach to land use was an overriding principle that guided land use, comparable to the way in which a government policy, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0212 As I have explained, land use plans that I have worked with such as LEPs and SEPPs created under Part 3 of the EPA Act, are rigid or fixed. Their amendment requires multi-phase decision making processes involving public consultation and other processes. 213 See Brody, supra note 190 at 85. 214 id at 86. 215 id at 43. Emphasis added. 216 id at 191. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 63\t \u00C2\u00A0such as ministerial guidelines to support the implementation of a legislative regime as a governance tool, guides land use: In the present day with the population of not only Caribou at a critical stage but other species as well, many of our members recall hunting trips to be much more prosperous because of the more sustainable approach to land use.217 The following comments, which detail practices implementing Dunne Za law, provide further support for a conservation objective as motivating the traditional seasonal round: As noted by Brody, our nation has long been concerned with conservation and we have adopted a number of strategies to protect animals. These include planning where families will go, rotating our use of particular areas, selecting the time of year when the animal is least likely to be impacted.218 One winter they trap one area. Next winter they leave that place, they would trap in a different area\u00E2\u0080\u00A6 By the time they finish all of this, it is 6-7 years, and they go back. They don\u00E2\u0080\u0099t kill off one place everything.219 In summer, once they move out there they put up the poles where they camp. Six or seven years later they used the same poles because they don\u00E2\u0080\u0099t want to ruin the land.220 The Indians\u00E2\u0080\u0099 system was not easy to discern but, as I shall show, it was patterned and thoughtful. The Indians certainly did not think that they were surrounded by limitless and underused resources, nor did they ever accept that their hunting practices were wasteful. 221 Seemingly, much thoughtful planning and deliberate intent informed these conservation and hunting practices. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0217 id at 57. Emphasis added. 218 id at 62. Emphasis added. 219 id at 63. Emphasis added. 220 id at 63. Emphasis added. 221 id at 8. \t \u00C2\u00A0\t \u00C2\u00A0 64\t \u00C2\u00A0As a separate but related observation, the following description elucidates the \u00E2\u0080\u009Cclash of worldviews\u00E2\u0080\u009D or cultural impasse evident in the contrast between the traditional seasonal round and non Dunne Za means of using and managing the land: many white trappers found themselves repeatedly at odds with an altogether unfamiliar, even incomprehensible, way of harvesting the land\u00E2\u0080\u0099s resources\u00E2\u0080\u00A6White settlers and trappers had clear notions of orderly land use that were based on well tried patterns of frontier homesteading. They imagined that a trapping area they had claimed would be theirs alone, an area where they would have an exclusive right to harvest furs. The Indians\u00E2\u0080\u0099 system was based on freedom of access, flexible use and rotational conservation, which meant that some areas went un-trapped for seasons on end.222 Exclusive possession juxtaposes a sharing, collective approach that characterizes Dunne Za land use law. Moreover, the rigidity of the system of land management for regulating trapping that was imposed upon the Dunne Za\u00E2\u0080\u0099s legal systems, conflicts with the relative flexibility of the Dunne Za\u00E2\u0080\u0099s relationship with the land. Indeed, as I suggest and purport to establish below, this relationship is pervasive and is a key distinguisher that cannot be under-appreciated. My conclusion I envisage the seasonal round as comparable with a land use planning regime whereby hunting is a land use and the West Moberly have certain hunting zones. These are areas where their knowledge of animal behaviour and other variables determine it is permissible to hunt because hunting will not yield extirpation and \u00E2\u0080\u009Cspiritual dismemberment\u00E2\u0080\u009D223 of the Caribou. It won\u00E2\u0080\u0099t upset the balance and order.224 Moreover, such zones delineating hunting areas are depicted on Brody\u00E2\u0080\u0099s maps as \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0222 id at 87. Emphasis added. 223 id at 67. 224 id at 79. \t \u00C2\u00A0\t \u00C2\u00A0 65\t \u00C2\u00A0squiggles, which indicate that these areas are quite different from land use zones featured in fixed land use plans. Multiple variables determine permissible hunting areas. Two variables in this quasi land use regime are that zoning appears to be both temporal and geographic. Temporal zoning is largely determined by animals\u00E2\u0080\u0099 migration paths. The Dunne Za hunt at certain times of the year. Zoning is also geographic in that the hunters follow the game\u00E2\u0080\u0099s seasonal movements or they move to areas where \u00E2\u0080\u009Ca specialized habitat supports particular species in abundance.\u00E2\u0080\u009D225 Contrary to many State imposed zones in land use plans and planning instruments with which I am familiar, which are rigid and are only amendable via decision-making of the governor, minister, or his or her delegate,226 these zones are not fixed. Rather, they are malleable and adjust according to knowledge which some would call traditional knowledge. I think it is safe to conclude that the traditional seasonal round was and is a means of obtaining food for the Beaver Indians. But that it also, and perhaps more significantly, may be characterized as a land management regime that is governed by conservation objectives, which respects the ability of the land to produce what is needed, without upsetting the balance or order. That is, it is a conservation mechanism. Its fluidity and ability to adapt defies the relative rigidity of land use plans of the Canadian state and other legal means for regulating land use.227 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0225 id at 191 cited in the initial submission, supra note 187 at 43. 226 See Part 3 of the EPA Act in relation to creating and amending an EPI under the NSW land use planning scheme. See Part 3, Division 2 for State Environmental Planning Policies and Part 3, Division 4 for Local Environmental Plans. For a very basic summary see http://www.planning.nsw.gov.au/en-au/policyandlegislation/legislationandplanninginstruments.aspx. 227 I have far greater experience with legal documents regulating land use and development as part of the NSW planning regime pursuant to the EPA Act. These include environmental planning instruments (EPIs), conservation agreements and conservation covenants. \t \u00C2\u00A0\t \u00C2\u00A0 66\t \u00C2\u00A0In further discussion below, and based upon interpretations of stories as well as references within the initial submission, I proceed to hypothesise that the traditional seasonal round is also governed by and mindful of, respect for the land and \u00E2\u0080\u009Cother than human\u00E2\u0080\u009D or natural world, such that consequences ensue from non-adherence to this respect. For example, if the natural world is not respected, inter alia, the animals will not return. I proceed to discuss variables and components of the seasonal round that the petitioners\u00E2\u0080\u0099 submissions allude to, but do not submit, in any considerable detail. 3.1.1 Dreaming or dream hunting A further and central ingredient of hunting pursuant to the traditional seasonal round, which is indicative of the differing relationship that the Dunne Za had with the \u00E2\u0080\u009Cother than human world\u00E2\u0080\u009D228 or natural world, is that hunting was influenced by dreaming. Given that I infer that the relationship of respect and reciprocity that the Dunne Za had with the other than human or animal world is an iconic characteristic of their worldview, I merely touch upon this aspect here as it relates to the seasonal round and dream hunting, and develop it further in a separate discussion below. The initial submission alludes to Dunne Za dreaming but it does not describe it in any detail. The initial submission mentions that hunting is a spiritual process and that the fall hunt provides spiritual wealth. For example, one such description narrates the approach of hunters as follows: \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0228 As noted in Chapter 2 at 2.2, note 95 supra, I have been encouraged to adopt Hallowell\u00E2\u0080\u0099s typology for the non human world. See A Irving Hallowell, \u00E2\u0080\u009COjibwa Ontology, Behavior and World View\u00E2\u0080\u009D in Raymond Fogelson and Richard Adams, The Anthropology of Power Ethnographic Studies from Asia, Oceania, and the New World (New York: Academic Press, 1977) at 19. \t \u00C2\u00A0\t \u00C2\u00A0 67\t \u00C2\u00A0\u00E2\u0080\u009Cthey are out there in the bush hunting and it is not just about killing an animal. It is about that whole spiritual aspect. What it means to hunt that animal and for that animal to have given up its life to feed that family or person.\u00E2\u0080\u009D229 Similarly, referring to his / her Grandpa, Korrie Dokkie narrates, \u00E2\u0080\u009Cwhen out in the bush that was the closest to God he ever felt.\u00E2\u0080\u009D230 Within the umbrella of spirituality, hunting is an activity that is associated with dreaming and medicine power. The initial submission makes reference to the use of medicine power,231 and alludes to how medicine worked in the culture. For example, the Submission cites Jenness who provides, \u00E2\u0080\u009CCaribou \u00E2\u0080\u00A6know the thoughts of men who have received medicine from them. They have spoken to them, given them songs perhaps, or told them to wear certain amulets. There is a mystic bond between them, and provided the men observe the rules the animals will obey their wishes.\u00E2\u0080\u009D232 Finally, the initial submission notes that hunting medicine was obtained through dreams.233 Notably, the initial submission does not explain these points in any great detail. However, Chief Willson encapsulates some of these elements in a more detailed description. He notes: I became aware that back when the prophet had this dream there was an abundance of Caribou that moved back and forth.\u00E2\u0080\u00A6so at times of need you could go to Twin Sisters. Provide you meat; fish; berries; fresh clean water. Understanding that was a refuge for Dunne Za in times of trouble\u00E2\u0080\u00A6so the dream of going to Twin Sisters won\u00E2\u0080\u0099t exist anymore. Our spiritual culture has been impacted that way as part of a core belief of \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0229 See the initial submission, supra note 187 at 66. Emphasis added. 230 ibid. Emphasis added. 231 id at 54-56. 232 id at 55. Emphasis added. 233 id at 54-56. \t \u00C2\u00A0\t \u00C2\u00A0 68\t \u00C2\u00A0being connected to the land...So what I have lost is the spiritualness of not being able to go out and teach my son how to hunt a caribou.234 But what does Chief Willson mean by the prophet having a dream, and the dream revealing a location where food and resources are bountiful? To supplement the snippets of detail provided in the initial submission, I defer to Brody who, through his narrative form,235 illustrates the operation of dream hunting and hunting medicine, as influencing the operation and workings of hunting pursuant to the traditional seasonal round, or as being part of the mechanics of hunting. Yet Joseph\u00E2\u0080\u0099s Daddy, along with the others, sought a confirmation of the new area\u00E2\u0080\u0099s potential. This was done by means of a dream prophecy and the erection of a medicine cross.236 \u00E2\u0080\u00A6 When it was in place, Patsah and others hung skin clothing and medicine bundles from the main crosspiece, and on the panel near the base, they inscribed \u00E2\u0080\u009Call kinds of fancy\u00E2\u0080\u009D - drawings of animals that had figured in the people\u00E2\u0080\u0099s dreams, animals of the place that would make themselves available for the hunt.237 The night the cross was completed, an augury came to one of the elders in a dream. A young cow moose, moving to the Patsah camp from the Bluestone Creek area, circled the base of the cross, then went off in the direction from which she had come. Two days after, hunters discovered the tracks of a young cow moose, and, following these, recognized them to be the tracks of the dream animal. The tracks led to the cross, circled it, then returned to the Bluestone. The dream prediction had been auspiciously fulfilled. The new area would provide abundantly.238 But what does this all mean for the worldview and legal system? What is the significance of the roles of dream hunting, prophecies, medicine bundles and medicine men, amongst other things? We have a narrative account, but no explanation. I am still not convinced that I comprehend dream hunting and its constituent elements, interconnections and relationships. Ridington\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0234 id at 79. 235 This is distinct from his land use report. 236 Brody, supra note 190 at 8. Emphasis added. 237 ibid. Emphasis added. 238 id at 9. \t \u00C2\u00A0\t \u00C2\u00A0 69\t \u00C2\u00A0analysis provides a very useful exposition that goes much further towards explaining the contribution of all of these elements. I extract much of this below as it is inseparable from the discussion of traditional knowledge and its role in hunting practice and law. I note too that Jenness provides a detailed description of medicine power and dreaming, which I discuss also, to the extent that this is necessary. 3.1.2 Substantive components of the Traditional Seasonal Round: the role of traditional knowledge A related critical element that seems false to isolate from the discussion of dreaming, is that the Dunne Za traditional seasonal round is based on traditional knowledge. Traditional knowledge informs the decision-making pursuant to the traditional seasonal round. The submissions allude to this. However, this risks being underappreciated. That is, the mechanics of traditional ecological knowledge, including its influence upon decision-making, risk being under appreciated. In this way, the seasonal round is arguably an application of traditional knowledge. The submissions provide: \u00E2\u0080\u009Ctraditional ecological knowledge about the seasonal patterns of flora and fauna, and the institution of traditional conservation practices, enabled the Mountain Dunne-za to ensure the continuity of preferred game and plant resources in their preferred Treaty territory.\u00E2\u0080\u009D239 However, the initial submission does not directly state that traditional ecological knowledge informs the seasonal round. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0239 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) at para 52 citing Affidavit #1 of George Desjarlais at paras 25-27; Affidavit #1 of Catherine Dokkie at paras 2-6; Affidavit #1 of Roland Willson at para 8. \t \u00C2\u00A0\t \u00C2\u00A0 70\t \u00C2\u00A0In relation to the importance of traditional knowledge to hunting, Brody\u00E2\u0080\u0099s discussion contains snippets of detail, particularly as regards the uniqueness of decision-making. Brody indicates that \u00E2\u0080\u009Csuccessful harvesting of its resources requires knowledge of animal movements over the whole area, including places that are rarely, if ever, visited.\u00E2\u0080\u009D240 Moreover, \u00E2\u0080\u009Cthis round varied from year to year and some territories were left fallow for several reasons depending on the hunters\u00E2\u0080\u0099 and trappers\u00E2\u0080\u0099 assessments of a resource.\u00E2\u0080\u009D241 So we are told that knowledge of animal movements as well as the hunters and trappers\u00E2\u0080\u0099 assessments of a resource influence the traditional seasonal round. Brody\u00E2\u0080\u0099s narrative account that accompanies his land use report complements such description with illustrative examples. Describing his participation with Joseph Patsah in the Spring Beaver Hunt, which comprises one fifth of the traditional seasonal round, Brody writes: Joseph had asked me to ride with him several miles upstream to look over an area of beaver dams and lodges that he had not hunted for several years. When he came near to the dams, he dismounted and walked slowly from one to the other, making his way through a tangled profusion of trees which the beaver had felled. It was a landscape signposted by the pale freshness of newly gnawed stumps and the dark decay of older cuttings. Joseph read these and other signs. He was checking his fields, counting stock, reviewing assets. The analogies of the other economic orders spring to mind, though none does justice to the massive body of information that such eyes as his could see in these trails, stumps, dams and lodges.242 From this account it appears that the economic system of which the seasonal round is a part was governed by \u00E2\u0080\u009Cthis massive body of information.\u00E2\u0080\u009D As such, traditional knowledge is a critical ingredient of the Dunne Za economic system. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0240 Brody, supra note 190 at 174. Emphasis added. 241 id at 87. Describing trapping country and traplines. Emphasis added. 242 id at 221. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 71\t \u00C2\u00A0In contrast to these brief narrative accounts and fragments of detail, Ridington specifically addresses the role of knowledge, or what he terms artifice, in adaptive strategies such as the traditional seasonal round.243 Describing the Doig River First Nation, Ridington eschews the preoccupation of anthropologists and others with artefacts, namely physical, tangible, material objects, and instead emphasizes the importance of appreciating artifice, namely the intelligence informing decision making and strategy. Capturing the chasm dividing certain societies\u00E2\u0080\u0099 preoccupation with the material and tangible from that of hunting and gathering societies such as the Dunne Za, he writes, \u00E2\u0080\u009Cwe inadvertently overlook the artifice behind technology in favour of the artefacts that it produces.\u00E2\u0080\u009D244 He insists such emphasis is misplaced, as \u00E2\u0080\u009Chunting and gathering societies seem particularly to value the possession of technical knowledge over the possession of material artifacts.\u00E2\u0080\u009D245 Put concisely, \u00E2\u0080\u009Cthe carrying device is an essential artifact of hunting and gathering technology.246 But \u00E2\u0080\u009Cthe technique of being able to carry the world around in your head is even more fundamental.\u00E2\u0080\u009D247 But what is such artifice? What constitutes this \u00E2\u0080\u009Ctechnical knowledge\u00E2\u0080\u009D? It is essential to appreciate not just the fact that hunting decisions are based on \u00E2\u0080\u009Ca massive body of information,\u00E2\u0080\u009D from the land and \u00E2\u0080\u009Cother than human world,\u00E2\u0080\u009D namely the substantive component, but also, that epistemologically this involved a very different decision making methodology or process. That is, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0243 See \u00E2\u0080\u009CTechnology, Worldview and Adaptive Strategy in a Northern Hunting Society\u00E2\u0080\u009D in Ridington, supra note 200 at 84. 244 id at 86. 245 id at 85. 246 Richard Lee, The Kung San: Men, Women and Work in a Foraging Society (Cambridge: Cambridge University Press, 1979) at 489-494. Cited in Ridington, supra note 200 at 87. 247 Ridington, supra note 200 at 87. \t \u00C2\u00A0\t \u00C2\u00A0 72\t \u00C2\u00A0there seem to be both substantive and procedural components to the decision making involved with the regulation of the use of the land pursuant to the traditional seasonal round.248 Ridington elaborates that \u00E2\u0080\u009Cthe essence of hunting and gathering adaptive strategy, is to retain and be able to act upon, information about the possible relationships between people and the natural environment.\u00E2\u0080\u009D249 \u00E2\u0080\u009CWhen realized, these life giving relationships are as much the artifacts of hunting and gathering technology as are the material objects that are instrumental in bringing them about.250\u00E2\u0080\u009D But what are the mechanics of knowledge as informing the traditional seasonal round? That is, how does this work? Brody\u00E2\u0080\u0099s narrative of the Spring Beaver Hunt extracted above alludes to this mechanism, whereby decision making is based on \u00E2\u0080\u009Ca massive body of information\u00E2\u0080\u009D that is \u00E2\u0080\u009Cread\u00E2\u0080\u009D251 by the hunter. What Brody illustrates, Ridington explains as follows: \u00E2\u0080\u009CHunters and gatherers\u00E2\u0080\u00A6 internalise detailed information about topography, seasonal changes and mineral resources. They plan their own movements in relation \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0248 On this point I noted that former Chief Justice Finch commented on the need for both substantive and procedural elements of Indigenous legal traditions to be acknowledged. I have inadvertently recognized these and did not set out to detect them. Albeit I am not sure that a member of the Dunne Za trained in Dunne Za legal traditions, would characterize the seasonal round in this way. Finch CJ provides at para 26, Moreover, severance of Indigenous laws from their spoken medium is just one aspect of an overall severance from individual Indigenous cultures\u00E2\u0080\u0099 laws of procedure. At least in rights and title jurisprudence thus far, the courts\u00E2\u0080\u0099 consideration of the Indigenous legal perspective amounts to a substantive weighing. Because this weighing occurs within the Canadian court system, substantive principles, insofar as they are granted weight, are considered outside of the unique procedural systems in which they are intended to be communicated and applied. In other words, the \u00E2\u0080\u009Cwhat\u00E2\u0080\u009D of the principles is considered independently of the \u00E2\u0080\u009Chow.\u00E2\u0080\u009D See The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012) at para 26, emphasis added.\t \u00C2\u00A0249 Ridington, supra note 200 at 86. Emphasis added. 250 ibid. Emphasis added. 251 Brody, supra note 190 at 221. \t \u00C2\u00A0\t \u00C2\u00A0 73\t \u00C2\u00A0to the information they hold in mind about the world in process around them. Often, information about the resource potential of the environment is processed and organized in their minds through the use of dreams and divinatory devices. (Ridington 1987a). Their plans are central to an adaptive strategy in which control of information maximized control over the relationship between people and the environment.252 As such, the operation of traditional knowledge in the traditional seasonal round or the means by which traditional knowledge influences the seasonal round, seems analogous to the realization of a kinetic potential energy. Intellectual capital or knowledge about possible relationships between people and the natural environment is absorbed from the environment including the other than human world and is internalized. It is resolved and processed in dreams in a period of marination during which understanding is reached. It exists and is able to be acted upon. Ridington expands in great detail as to the mechanisms by which traditional knowledge informs the seasonal round. Not all of his details are supported by explicit references within the initial submission or Court submissions. However, the initial submission notes that Ridington\u00E2\u0080\u0099s writings as to Dunne Za spirituality and worldview, document and interpret vision quests, medicine powers and dreamers.253 As such, we know that the evidence before the decision makers made mention of Ridington\u00E2\u0080\u0099s work as interpreting these things. In particular, it specifically cites Ridington\u00E2\u0080\u0099s 1990 work, which I principally rely upon for guidance. Moreover, the initial submission refers to at least one story that Ridington documents as authority for its propositions.254 I speculate that many of the details Ridington documents as to the role of traditional knowledge in hunting law and \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0252 Ridington, supra note 200 at 87. 253 See the initial submission, supra note 187 at 56. The Initial Submission references Ridington\u00E2\u0080\u0099s 1981, 1990 and 1998 works as interpreting these things. 254 id at 45. The initial submission refers to, but does not extract, a story told by Jumbie whose father\u00E2\u0080\u0099s kinsmen were at Hudson\u00E2\u0080\u0099s Hope. \t \u00C2\u00A0\t \u00C2\u00A0 74\t \u00C2\u00A0practice, are supported to varying degree, through some of the oral histories or stories that the initial submission extracts. In relation to the substantive content of knowledge, Ridington further provides: \u00E2\u0080\u009Cthe Beaver had and still retain, a rich and complex set of ideas about the possibility of meaningful human action in relation to the resource potential of their varied environment. They related to one another and to the animals with whom they shared the world on the basis of subtle references to mutually understood information. The importance of mutual understandings was evident, both in interpersonal relations and in those between people and animals.\u00E2\u0080\u009D255 Further, \u00E2\u0080\u009Crelations between people and animals were also organized by reference to common understandings believed to exist between hunters and their game.\u00E2\u0080\u009D256 \u00E2\u0080\u009CIn order for a hunt to be successfully completed, the animal had to have previously given itself to the hunter in a dream.\u00E2\u0080\u009D257 Both animals and hunter were supposed to have been known to one another before their physical meeting in the hunt itself. Animals were believed to be pleased by the hunter\u00E2\u0080\u0099s respect for their bodies, and to notice his generosity in distributing the meat.258 Hunters sought to develop an ability to think like game animals in order to predict their behaviour. They were trained to interpret the environment from an animal\u00E2\u0080\u0099s perspective. The hunter\u00E2\u0080\u0099s understanding of an animal\u00E2\u0080\u0099s thought process, was believed to be mirrored by the animal\u00E2\u0080\u0099s understanding of how humans fulfilled obligations incurred in the hunt.259 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0255 Ridington, supra note 200 at 88. Emphases added. 256 ibid. Emphasis added. 257 id at 89. 258 id at 89. 259 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 75\t \u00C2\u00A0The fact that the Beaver are described as sharing the world with the animals suggests a more egalitarian relationship than a hierarchical and anthropocentric one in which humans are the dominant species and adjust the environment to suit their needs. Consistent with this, several elements suggest a relationship of reciprocity as existing between the human and what Ridington would call the natural world, but which other anthropologists have termed the \u00E2\u0080\u009Cother than human world.\u00E2\u0080\u009D260 The fact that certain information is mutually understood as well as that common understandings are believed to exist between hunters and their game, attests to mutual exchange between human and animal. Such is the means by which the hunter has knowledge of an animal\u00E2\u0080\u0099s geographic location in the hunt. Reciprocity implies mutual give and take. In consideration for animals being pleased with hunter\u00E2\u0080\u0099s respect for their bodies and generosity in distributing meat, animals give themselves to hunters in a dream. The fact that the revelation of the animal\u00E2\u0080\u0099s location is a requisite for the hunt to be successfully completed, affirms the importance of knowledge to the operation of the seasonal round, which I think, is Ridington\u00E2\u0080\u0099s principal thesis. That is, the seasonal round is not just based on traditional knowledge. Rather, traditional knowledge is required. Moreover, drawing from these details, it seems that the reciprocal relationships between hunters and animals, are indispensible to the content of knowledge that informs the operation of the seasonal round. A further example of the interplay of such reciprocal relationships, which supports what Jenness describes as a mystic bond as existing between hunters and game,261 is that the fact of hunters developing the ability to think like animals and to interpret the environment from an animal\u00E2\u0080\u0099s perspective, seems to be reciprocated by the animal\u00E2\u0080\u0099s understanding of how humans fulfilled obligations incurred in the hunt. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0260 See Hallowell, supra note 228. 261 See Jenness, supra note 204. And further, see note 187 supra at 55. \t \u00C2\u00A0\t \u00C2\u00A0 76\t \u00C2\u00A0Some final but critical comments from Ridington capture the symbiosis between the human and natural world, and correlation between human action and the natural world. Moreover, they attest the importance of knowledge and lack of differentiation between human and animal world in this respect, that is, that the human and animal world are united by knowledge. Ridington provides: People were also expected to be well informed about their relationships to one another. They believed that the quality of their interpersonal relations, was reflected in the quality of their relations with animals. Animals were believed to know when people behaved badly toward one another and to withdraw from contact with them.262 The Beaver people viewed human experience as a life sustaining network of relationships between all components of a sentient world. They experienced their world as a mosaic of passages and interactions between animate beings in motion against the backdrop of a terrain that was itself continually in process through the cyclical transformations of changing seasons.263 They looked upon the trails of people and animals as a record of these interactions. Each trail they believed, continued backward and forward beyond the point at which it could no longer be followed physically. The trails that lay ahead, as well as those that lay behind, could be followed by people in their dreams. The trail of every adult could be followed in the mind back to the point of visionary encounter with a medicine animal, \u00E2\u0080\u00A6 Each actual point of meeting between person and animal was believed to be the manifestation of antecedent meetings in the medium of a dream or vision.264 It seems that human agency directly impacted upon the behaviour of animals.265 Moreover, again alluding to the relative egalitarianism of their worldview, it appears the Beaver people do not distinguish between human and animal \u00E2\u0080\u009Clife,\u00E2\u0080\u009D in the sense that the animal world seems to share equally as a component of the sentient or knowing world. In addition, animals have a role in the world order that is equal or at least not inferior to, the role of human actors. It seems humans and animals are united by knowledge. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0262 I speculate that the actions of the protagonist in the oral history I extract below, illustrates this principle. 263 See Ridington, supra note 200 at 90. Emphasis added. 264 ibid. Emphasis added. 265 A principle I observe in the oral history below. \t \u00C2\u00A0\t \u00C2\u00A0 77\t \u00C2\u00A0Further, we must appreciate an epistemological shift in that Beaver people envisaged life both animal and human, as existing at a particular point in time on a trail. In addition to the above extract, Ridington continues: Traditional Beaver world view centred around their image of the trail. Every sentient being was perceived as existing at a particular point on a trail that could be imagined projecting forward and backward from that point. This projection was accomplished through the use of dreams. Success depended on being able to make decisions about how best to move in relation to the complex network of trails emerging from the past and merging into the future. Hunters believed that in the dream state they could resolve a larger pattern of inter-related trails, than would be possible in ordinary waking consciousness. In dreams, a person could draw on his or her own personal relationship to the natural world established during the visionary experience of childhood. The power conveyed by that experience was believed to facilitate later dream contact between people and animals. The Beavers\u00E2\u0080\u0099 beliefs about dreaming seem to have reflected an understanding that when the mind is released from the task of processing information from the immediate perceptual environment, it may concentrate on processing information generated internally and derived from past experience.266 Returning to an argument that Brody touched upon without elaboration in relation to the sophistication of the economic system, it seems that control of these relationships between human and animal life is mandatory to hunting. Accordingly, it would be wrong to state merely that the traditional seasonal round is based upon traditional knowledge, for this description does not adequately explain the myriad of interconnections and relationships, and variables encompassed within traditional knowledge, particularly the substantive and procedural elements by which it influences decision making pursuant to the traditional seasonal round. As Ridington articulates, \u00E2\u0080\u009Csuccess or failure in hunting depended upon a person\u00E2\u0080\u0099s ability to conceptualise and control the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0266 Ridington, supra note 200 at 91. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 78\t \u00C2\u00A0mosaic of relationships between people, animals, and celestial bodies.\u00E2\u0080\u009D267 Further, \u00E2\u0080\u009Cthe technology of subsistence required that a person be able to bring about a regular and coherent relationship between the trails of people, animals, and the sun and moon.\u00E2\u0080\u009D268 In this way, the analogy I suggested earlier with comprehending a three dimensional versus four dimensional worldview or lens becomes more comprehensible. Hunting pursuant to the traditional seasonal round differed significantly from a land use regulated by \u00E2\u0080\u009Cthree dimensional\u00E2\u0080\u009D land use planning. It contains substantive and procedural variables and dimensions that a non Dunne Za person might legitimately find difficulty with comprehending. Chief of these are the variable of time, pre-existing relationships with the natural world and the process of dreaming. 3.1.3 Procedural elements of Dunne Za decision making Earlier I speculated that both substance and process components ought be considered as part of the means by which traditional knowledge influences the operation and regulation of hunting pursuant the traditional seasonal round. Returning to the procedural aspects, a further and striking example of the divide separating Dunne Za and non Dunne Za legal systems is implicit in Brody\u00E2\u0080\u0099s enunciation of the epistemological shift that is necessary to appreciate the legal system and way of life of the Beaver Indians. He provides: The way to understand this kind of decision making is also to live by and even share it, is to recognize that some of the most important variables are subtle, elusive, and extremely hard or impossible to assess with finality. The Athapaskan hunter will move in a direction and at a time that are determined by a sense of weather (to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0267 ibid. 268 ibid. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 79\t \u00C2\u00A0indicate a variable that is easily grasped if all too easily oversimplified by the one word) and by a sense of rightness.269 As I discuss further in Chapter 5 below in relation to the feasibility of decision makers being able to embrace and appreciate Indigenous legal traditions, such decision making, specifically, the \u00E2\u0080\u009Cprocess components\u00E2\u0080\u009D informing the operation of the traditional seasonal round, might likely perplex non Dunne Za decision makers for several reasons. For example, how might one quantify and assess such intangible variables as senses of weather and rightness? Similarly, other variables which are \u00E2\u0080\u009Cimpossible to assess with finality.\u00E2\u0080\u009D Are these not vague and uncertain? Such intangible variables seem to defy the pursuit of achieving determinative considerations, that is a feature of administrative decision making.270 Although it is unlikely that a non-Dunne Za decision maker would have to review Dunne Za decision making, I suggest that the vagueness of being guided by sense might be difficult for a non Dunne Za person or adjudicator to appreciate. Brody\u00E2\u0080\u0099s further caution further emphasizes the sharp polarity in perspectives and decision making methodologies: But already the nature of the hunter\u00E2\u0080\u0099s decision making is being misrepresented by this kind of listing. To disconnect the variables, to compartmentalize the thinking is to fail to acknowledge its sophistication and completeness. He considers variables as a composite, in parallel and with the help of a blending of the metaphysical and the obviously pragmatic.271 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0269 Brody, supra note 190 at 37. Emphasis added. 270 I touch upon this purported incompatibility with administrative decision making briefly in Chapter 5 below. 271 Brody, supra note 190 at 37. Emphases added. \t \u00C2\u00A0\t \u00C2\u00A0 80\t \u00C2\u00A0The decision making methodology whereby lists of compartmentalized considerations are weighed up to achieve a compromised outcome,272 contrasts with decision making that melds both pragmatic and metaphysical variables and which is a fusion of both.273 Brody discusses at length how this differs from non-Dunne Za notions of a decision and decision making, that, substantively omits such metaphysical variables and procedurally, seeks certainty or at least, to quantify the determinative considerations. Epistemologically, we have fundamentally different notions of what constitutes a decision and the methodology involved in decision-making. This is an important illustration of the \u00E2\u0080\u009Cclash of worldviews\u00E2\u0080\u009D that occurs when these substantially different decision making methodologies intersect, as they do in \u00E2\u0080\u009Cenvironmental\u00E2\u0080\u009D decision-making, that is, decision making involving natural resources and environmental subject matter and resources disputes. It would seem that Brody compels his audience \u00E2\u0080\u009Cto learn\u00E2\u0080\u009D in the sense of being receptive to these differing methodologies. By contrast, as I explore in Chapters 4 and 5, prima facie, it appears some administrative and judicial decision makers do not even try. As an example of the application of this type of decision-making, I think one can infer from the initial submission that respect is one such intangible variable that influences decision making operation pursuant to the seasonal round. That is, I think one can read from the initial submission \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0272 I am referring to the application of the administrative law doctrine of relevant considerations as applied in leading cases such as Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 4. Much town planning decision making sees the application of this principle, such as for example, decisions of a consent authority pursuant to Section 79C of the Environmental Planning and Assessment Act, 1979 (NSW), which outlines the factors the consent authority is bound to take into account. These include for example, \u00E2\u0080\u009Cthe provisions of any environmental planning instrument:\u00E2\u0080\u009D s 79C (1) (a) (i) and \u00E2\u0080\u009Cthe suitability of the site for the development: s 79C (1) (c). I suggest such factors contrast the vagueness of variables such as senses of weather and rightness which seem to inform decision making pursuant to the traditional seasonal round. 273 Perhaps this is why Dunne Za member Caleb Behn critiqued Provincial Government decision making for being atomistic, rather than, I infer, holistic. Caleb Behn, \u00E2\u0080\u009CIndigenous Law as a Solution to Resource Conflict in Treaty 8,\u00E2\u0080\u009D Presentation co hosted by Lawyers Rights Watch Canada, delivered at the Vancouver Public Library, 28 February 2013. \t \u00C2\u00A0\t \u00C2\u00A0 81\t \u00C2\u00A0that respect for the \u00E2\u0080\u009Cother than human world\u00E2\u0080\u009D is an intangible variable that informs decision-making. Accordingly, decisions are not based exclusively on quantitatively how much meat is needed for consumption by the Beaver Indians. Rather, intangible variables such as the relationship with the animal world influence decision-making. In conclusion, returning to the concern as to my methodology, namely that I was not convinced that the initial submission, which was expeditiously prepared,274 provided a complete portrayal of Dunne Za law, the snippets of detail and hints in the submissions, together with Brody\u00E2\u0080\u0099s narrative account and brief explanation, and Ridington\u00E2\u0080\u0099s detailed explanation, combine to sufficiently inform me to be able to reach, I believe, reasonable inferences as to the Dunne Za worldview and legal system. 3.2 The moratorium A second such law that seems entirely distinct from the traditional seasonal round is the moratorium on hunting Caribou that the West Moberly First Nation implemented in the 1970s. While it is unclear, I speculate that the subject legal challenge was at least partially incited or at least, influenced by the need to uphold the purpose of this law, in the sense that the ostensible grounds for bringing the case adhere with its purpose. The ban on hunting was implemented so as to allow the species to rejuvenate in order to permit hunting in the future. Similarly, the case was brought to prevent encroachment upon Caribou territory to allow the herd to rejuvenate. It seems the West Moberly First Nation were seeking to enforce their law, which arises from Dunne Za legal traditions, by means of this case. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0274 See the initial submission, supra note 187 at 33. \t \u00C2\u00A0\t \u00C2\u00A0 82\t \u00C2\u00A0As to the rationale for the law and details of its enforcement, the initial submission provides: One extreme measure that is used is a moratorium on hunting a particular species. As the result of the decline in Caribou numbers, which corresponds to the construction of the WAC Bennett Dam, the elders restricted the use of Caribou by our nation: It was a few years after that\u00E2\u0080\u00A6when the elders noticed that there were not as many Caribou in the Upper Moberly... there wasn\u00E2\u0080\u0099t as many Caribou, I guess after taking a real good look at the numbers compared to what they were before, basically told all of us young people that were doing all the hunting for our communities and families, that we should quit hunting caribou until the numbers built up enough so that they would be \u00E2\u0080\u0093 so we could harvest them sustainably for sustenance.275 The submission continues: \u00E2\u0080\u009CBack in the 1970s\u00E2\u0080\u00A6under our tradition we still can\u00E2\u0080\u0099t hunt. We are not allowed to yet by our people. Right now the only elder that is basically enforcing that law, that is left alive, is my dad.\u00E2\u0080\u009D276 I note as a verification limitation that I am able to say considerably less about this legal tradition due to the absence of any discussion of it in the anthropological accounts.277 Pragmatically however, distinct from the complex intricacies of the seasonal round and the consequent need to decipher it in detail, the moratorium seems relatively straightforward. Comparable to state imposed command and control regulation, the moratorium appears to be a prohibition that is enforced. I speculate whether it is also an offence provision and akin to a criminal law. If so, what is the penalty? Is the penalty felt by and imposed upon the collective as \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0275 id at 63-64. 276 id at 64. 277 I note that Dunne Za member Caleb Behn briefly mentioned the existence of the moratorium as still being enforced at his presentation of February 2013. I do not think he was permitted to say more about this. See Behn, supra note 273. Bruce Muir suggested it is still being enforced. Personal Communication, August 2012. \t \u00C2\u00A0\t \u00C2\u00A0 83\t \u00C2\u00A0distinct from an individual? The use of the plural \u00E2\u0080\u009Cwe\u00E2\u0080\u009D in the above extract implies this. For example, in at least some coastal First Nation communities, over-fishing and not respecting the relationship with salmon might result in the Salmon not returning in the same numbers. I note that all Indigenous laws apply to the collective as individual rights are a western and positivist concept. As such similarly here, breach of this prohibition would be felt by the collective, namely all members of the West Moberly First Nation. 3.3 The principle of respect Above I discussed principles of respect and reciprocity for the natural world, that seem to influence the operation of the traditional seasonal round, namely, decision making pursuant to the traditional seasonal round as part of the content of traditional knowledge, and as a legal regime for regulating the practice or \u00E2\u0080\u009Cland use\u00E2\u0080\u009D of hunting and maintaining balance with the natural world. I proceed to discuss the principle of respect as what seemingly, is submitted as a discrete principle of its own right. In relation to the anthropological support for some of the inferences I draw from the initial submission, I note that Ridington addresses principles of respect and reciprocity. In addition, the work of Jenness, which the initial submission relies heavily upon, sustains some of Ridington\u00E2\u0080\u0099s details as relate to reciprocity and in particular, what he terms the mystic bond between human and animals.278 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0278 See Jenness, supra note 204 (referred to in Chapter 2, Part 2). \t \u00C2\u00A0\t \u00C2\u00A0 84\t \u00C2\u00A0Practice: sustainable use of hunted animals The initial submission refers to several practices as evidencing, and being governed by, the principle of respect. One such practice is the sustainable use of hunted animals. Rather than being explicit, this practice appears to be implied law or what a non Dunne Za person might understand as convention or unwritten law. The initial submission provides, \u00E2\u0080\u009Cthe animal is used for a variety of purposes. These include spiritual, trade, food, ceremony, clothing, art and other cultural purposes.\u00E2\u0080\u009D279 Moreover, Catherine Dokkie describes the use of Caribou: \u00E2\u0080\u009CThey didn\u00E2\u0080\u0099t leave nothing\u00E2\u0080\u00A6we don\u00E2\u0080\u0099t throw away nothing. We use everything except [caribou] lungs.\u00E2\u0080\u009D280 It would appear that it is illegal or contrary to Dunne Za legal traditions to kill an animal and not use all of its parts.281 I infer that it offends Beaver Indian legal traditions such that respectful use is an unwritten law. I speculate that we can deduce this from, amongst other things, the attitude and reaction that Beaver Indians have towards the waste resulting from sports hunting. George Desjarlais discusses sports hunting but only to the extent that the animals being taken has an impact on the West Moberly First Nation\u00E2\u0080\u0099s treaty right.282 However, Brody\u00E2\u0080\u0099s discussion of sports hunting is enlightening, as is the reaction of Joseph Patsah and other characters. Brody provides: Almost every Indian hunter tells of beaver, lynx, moose calves, and other animals that have been found dead or dying during the sports hunting season. Many also tell stories about dead horses and even cattle shot, they assume, in an abysmal extreme of ignorance. The abuse of wildlife disgusts and alarms the Indians. It represents a \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0279 The initial submission, supra note 187 at 43. 280 id at 51. 281 Such was also apparent from conversations I had with Mr Bruce Muir in August 2012, as well as one of Brody\u00E2\u0080\u0099s films. See Anne Cubbit, Hugh Brody, Treaty 8 Country [Video recording], [Canada]: Treaty 8 Film Collective; Vancouver: Moving Images Distribution, 1982. 282 The initial submission, supra note 187 at 60. \t \u00C2\u00A0\t \u00C2\u00A0 85\t \u00C2\u00A0dangerous failure to respect the animals and the land, a respect that is essential for the Indians\u00E2\u0080\u0099 own continued supply of food; essential that is, for their security.283 The juxtaposition of the particulars of hunting with respect, with the indiscriminate slaughter of sports hunters, sustains this deduction. George Desjarlais provides: Old people, especially First Nations people, go hunting they don\u00E2\u0080\u0099t just shoot anything they come across. They will kill specific animals at different times of the year because they know which animals are fat and healthy. And that is why they will only kill fat and healthy animals. Not like the way licensed hunters hunt. Where they go out and kill anything they come across. Even if it is a cow moose.284 Finally, and more explicitly stated, the following recitation of Dunne Za values, in which animals I including Caribou, are referred to as being \u00E2\u0080\u009Cjust like our friends,\u00E2\u0080\u009D285 supports the existence of the principle of respect, which manifests in practices such as an unwasteful use of animals. In addition, as alluded to above, notions of friendship with the animal world affirm the relatively egalitarian and non anthropocentric relationship that the Dunne Za have with the natural world. Like our forefathers, we still hold traditional values as Mountain Dunne Za peoples. These include viewing animals like people, respect for animals and their habitat, and an ethic not to waste plants and animals\u00E2\u0080\u00A6the bush, that\u00E2\u0080\u0099s our playground: up to the hills\u00E2\u0080\u00A6and those animals, they were just like our friends. They would just look at us. We care for these animals [caribou] not just because we want to eat them.286 3.4 Legal principles sourced in oral histories Whereas for other First Nations peoples such as the Haida, who are a totemic people and depict much law upon their totem poles, for the Dunne Za who are not a totemic people, law is contained in stories. Dunne Za member and former oil and gas officer for the West Moberly First Nation, Mr \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0283 Brody, supra note 190 at 233. 284 The initial submission, supra note 187 at 63. 285 id citing, Catherine Dokkie at 65. 286 ibid. Emphases added. \t \u00C2\u00A0\t \u00C2\u00A0 86\t \u00C2\u00A0Caleb Behn, has hinted at the importance of narrative as a source of law for the Dunne Za.287 Stated concisely, \u00E2\u0080\u009Cthe Dunne Za experience their lives as stories.\u00E2\u0080\u009D288 At the same time as there is a need to attempt to grapple with deciphering law from the oral histories because they are an integral source of law for the Dunne Za, the dilemma I am presented with is that these are more difficult to access and interpret as a source of Indigenous law, than the text of the initial submission for example, because they are a highly contextualized discourse.289 The oral histories have a greater need for guidance and verification by an Elder or other person of the Dunne Za who is versed in their legal traditions. Professor Borrows seems to articulate this need concisely when he states, \u00E2\u0080\u009Ca full understanding of First Nations law, and their principles for governance, requires familiarity with other stories of the particular culture and the surrounding interpretations given to them by the people.\u00E2\u0080\u009D290 Their translation is aided by review of detailed anthropological work. However, the inability to access current elders or other members who understand and can explain their meaning is a limitation. By contrast, the initial submission was produced in concert with the then land use manager for the First Nation and its lawyers. Consequently, it is in a form and style that is more intelligible to a non Dunne Za person who is not trained in Dunne Za legal traditions. Mindful of this limitation, the initial submission extracts segments of several myths that are said to illustrate the significance and role of caribou. In particular, it notes that Pliny Earle Goddard \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0287 See Behn, supra note 273. 288 Ridington, supra note 200 at xiii. See also Robin Ridington and Jillian Ridington in collaboration with Elders of the Dane-Zaa First Nations, Where Happiness Dwells: a history of the Dane-Zaa First Nations, (Vancouver: UBC Press, 2013) at 2 which provides, \u00E2\u0080\u009Cto understand Dane Zaa history and culture, one must understand Dane-Zaa storytelling.\u00E2\u0080\u009D 289 id at xiv. 290 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at 18. Cited in Finch, supra note 248 at para 19. \t \u00C2\u00A0\t \u00C2\u00A0 87\t \u00C2\u00A0documented Caribou in five stories that impart moral lessons, guide appropriate conduct and serve as spiritual teachings.291 One such story that the submission extracts in part, is that of Tumaxale, A Culture Hero, which is published in Goddard\u00E2\u0080\u0099s compilation, \u00E2\u0080\u009CAnthropological Papers of the American Museum of Natural History, Volume X, Part IV, The Beaver Indians\u00E2\u0080\u009D under the heading, \u00E2\u0080\u009CMyths and tales.\u00E2\u0080\u009D Owing to its length, I extract a segment of this story that illuminates what I perceive to be, some of its teachings and law. I note that I am neither extracting nor addressing, any possible law illustrated by a role of Caribou from the balance of the story, as the intended meaning from these references is unclear to me. There were once two brothers who were traveling together. When they came to a large lake they decided to separate, one going along the shore in one direction and one in the other. One of them, Tumaxale, had not gone far before he came to a trail which had been used by people. He followed this trail between two mountains until it came out again on the large lake. He passed along where sky and water were seen on either side, and walked across on an old beaver dam. He saw a pretty girl sitting nearby, whom he addressed as sister, asking her why she was there. The girl, as soon as she saw someone approach, began to cry. \" Why do you cry, sister? \" the young man asked. \" A large beaver2 lives here that can only be pacified by giving him a human being. I have been given to him,\" she replied. \" He said he would come to get me this evening when the sun is half way down that big mountain.' Saying that he would watch for the beaver, he left the girl on the top of the mountain where he told her to wait for him. The girl told him that the beaver came out just at the edge of the water where the beaver dam made a bend. The young man sat there watching for the beaver and keeping track of the sun, and said to himself, \"My sister said he will come out when the sun reaches that point.\" The water began to move. Although the lake was a large one it was all set in motion. The beaver himself looking like a mountain came out at the turn of the dam. When the young man saw the beaver he said to himself that he was too big; but he also remembered how bad he was, and shot him, the arrow striking just behind the ear. He then ran away, Oh how he ran. He came up where the girl was sitting and the rising water came right up toward them. The water receded, and they followed it back until they came to the beaver dam. Because the beaver was so large he cut it up in little pieces and threw them all over the country. \"You will be only so large,\" he said. The pieces were as large as a man's little finger and there became as many beaver as there were pieces which were scattered over the world. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0291 The initial submission, supra note 187 at 54. \t \u00C2\u00A0\t \u00C2\u00A0 88\t \u00C2\u00A0They two started after the people who were living on ahead. \"I will sit here and wait for you, sister,\" he said. \"Go to your relatives.\" As soon as they saw her coming they all started to cry, thinking they would not live. \"My brother killed it,\" she told them. \"Where is your brother?\" they asked. \"He is sitting right there,\" she said. \"And what is your brother's name? \" they asked her. \"His name is Tumaxale (he goes along the shore),\"she told them. They were all glad he had done that, and did not want to let him go away. Each one of them asked him to be a son-in-law. He stayed there a short time, but concluded he would not remain in one place. He told them he was going out. They warned him there were bad people there. He went up to them and clubbed them all to death, leaving not one of them alive. He walked along the road until he came to a large place where he slept. There was a narrow place between two hills where it was the custom to set snares. He set a snare there and went to bed. It was very dark and daylight did not return. He kept climbing up the hill to look for the dawn, but there was not a sign of it. The darkness had lasted so long his wood was all gone. Although it was still night he went back where he had set the snare. He found it was the sun that had been caught, but it was so hot he could not go near it. \"Let all the animals come here quickly,\" he said to himself. They all came running there, but could do nothing. The very last, a mouse, came running back all burned. He had gnawed the rope off. The young man ran back along his own road to the place where the sun had been caught and took his snare again. He went on the way he had been going. Winter came on him again. As he was walking along, he came to a place where someone had drawn a sleigh along. Tumaxale had slept there and hung up a lynx. Some one had eaten some of the lynx in his absence.292 Upon reading a selection of the myths featured in the initial submission, I selected this one to analyse as I find it enigmatic and thus, intriguing. It seems incongruous that the protagonist Tumaxale is, upon my reading at least, benevolent to a seeming stranger who he terms his \u00E2\u0080\u009Csister,\u00E2\u0080\u009D and promptly afterwards, murderous. A possible interpretation I have of the law contained within this segment of the story is that Tumaxale\u00E2\u0080\u0099s actions and the consequences he receives, reinforce first, the reciprocity that exists between human and animal beings, as well as the principle of respect. Tumaxale comes to the aid of the girl by shooting the mountain-sized Beaver and preventing her from being given to it. His valour is recognized when he is then invited to become \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0292 Tumaxale, A Culture Hero, extracted in Pliny Earle Goddard, \u00E2\u0080\u009CThe Beaver Indians,\u00E2\u0080\u009D in Anthropological Papers of the American Museum of Natural History Volume X, Part IV. (New York: The Trustees, 1916) at 232 to 237. Emphases added. \t \u00C2\u00A0\t \u00C2\u00A0 89\t \u00C2\u00A0the son in law of many of the girl\u00E2\u0080\u0099s relatives. However, shortly after this, he proceeds to club them all to death. Not long afterwards, darkness endures in Tumaxale\u00E2\u0080\u0099s world when daylight does not return. Tumaxale soon learns that the sun has been caught. He seeks the help of animals but they can do nothing. In addition, some of the slain lynx he had hung up has been eaten. I suspect that the maladies that befall Tumaxale, particularly the fact that his ability to summon the help of animals proves futile, are penalties that reinforce the reciprocity and respect that exists between human and animal beings. Animals are aware of human actions, and animals\u00E2\u0080\u0099 behaviour is influenced by, and responds to, their knowledge of these actions.293 By this rationale, the animals\u00E2\u0080\u0099 inability to help Tumaxale and the fact of some of his lynx having been eaten are punishments that are deserved, and are a direct response to, his lack of respect for the girl\u00E2\u0080\u0099s relatives. The dark imagery of the lack of dawn, the sun having been caught and the return of winter, seems to emphasise Tumaxale\u00E2\u0080\u0099s wrong doing. If this is indeed a correct interpretation, this would indicate how some of the principles contained within the Dunne Za myths or oral histories, overlap with and I speculate, provide the authority for, the law contained within the initial submission. As I mentioned above, I was drawn to examine these stories owing to the enigma they present. In particular, because, although the initial submission states that Goddard documented Caribou in five stories that impart moral lessons, guide appropriate conduct and serve as spiritual teachings, after several readings, the role of Caribou in demonstrating these themes, remained elusive. Such a \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0293 See at note 262 supra which references Ridington\u00E2\u0080\u0099s discussion of the correlation between human action and the response of the animal world. Namely, the Dunne Za belief that the quality of their interpersonal relations, was reflected in the quality of their relations with animals. Animals were believed to know when people behaved badly toward one another and to withdraw from contact with them. \t \u00C2\u00A0\t \u00C2\u00A0 90\t \u00C2\u00A0predicament recalls in my mind the role of characters in drama and narrative who have significance in sub-plots, but whose importance to the primary narrative seems marginal.294 It appears we have multiple narratives at play. The primary, of Tumaxale, and secondary perhaps, in which Caribou are actors. What then is the relevance of the sub-plot? While I am unable to decipher the significance of the role of the Caribou, and this would require exploration in concert with members of the Dunne Za trained in these oral histories, what at least I can glean from the references in the oral histories, segments of the initial submission and the words of deponents in the affidavit evidence,295 is that Caribou seem to have a role in the order and governance of the Dunne Za. It is possible they form part of the institutional social fabric. They do not appear to be merely passive objects to be hunted. Rather, they seem to be active agents in the world order. Such detail is not appreciated by a reading of the Court judgments alone. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0294\t \u00C2\u00A0Such as Shakespeare\u00E2\u0080\u0099s Rosencrantz and Guildenstern, the sycophantic seeming friends of Hamlet who did \u00E2\u0080\u009Cmake love to [their] employment\u00E2\u0080\u009D of being actual informants to the King: See Hamlet Act V, Scene 2, line 57. Rosencrantz and Guildenstern play a minor role in the primary narrative and yet others such as Tom Stoppard, have explored and embellished their role on the margins of existence to suggest that they have a greater purpose than what focusing on the principal plot might reveal. 295 For example, Dr Aasen for the petitioners, deposed that Caribou were of deep cultural and spiritual signifiance. She explained, The importance of caribou to the Mountain Dunne-za is demonstrated by its role in worldview, myth, and spirituality. After a review of the literature, I conclude that in addition to entertainment value, caribou myths and stories taught and reinforced appropriate norms, beliefs and codes of conduct. Individual members of the Mountain Dunne-za actively sought caribou as a powerful spirit helper, whom, if respected in prescribed ways, was believed to aid a hunter throughout his life. West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Wendy Aasen Exhibit \u00E2\u0080\u009CB\u00E2\u0080\u009D at 29).\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 91\t \u00C2\u00A04. State based decision makers and Indigenous legal traditions Having identified some key legal traditions of the Dunne Za which were either submitted or alluded to in the initial and court submissions, paying some attention to the extent to which these were submitted as laws, in this chapter I examine the degree to which these legal traditions were recognized, respected and considered in the recent Caribou cases296 by examining the principal findings and reasoning of the successive decision makers. West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (West Moberly) concerned a petition by Chief Willson of the West Moberly First Nation and the West Moberly First Nation (the petitioners) to quash three decisions of government officials that permitted a proponent, First Coal Corporation (FCC), to obtain a bulk sample of coal as well as pursue an advanced exploration program. The first of these three decisions, made 1 September, 2009 by the Chief Inspector of Mines, was to amend an existing Mines Act permit to allow FCC to obtain a 50,000 tonne bulk sample of coal. The second decision, by the Inspector of Mines on 14 September 2009, was to amend FCC\u00E2\u0080\u0099s existing permit to conduct a 173 drill hole, 5 trench advanced exploration program on the same land. Thirdly, the final contested decision was that of the Ministry of Forests and Range on 8 October 2009 to permit FCC to cut and clear up to 41 hectares of land to facilitate the advanced exploration program (the clearing decision). FCC held existing mineral licences or tenures to explore for coal. Its proposed coal exploration activities were to occur in an area near Chetwynd within the Goodrich properties, approximately 50 kilometres south west of the West Moberly Reserve, and within what the petitioners considered \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0296 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 and West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 \t \u00C2\u00A0\t \u00C2\u00A0 92\t \u00C2\u00A0to be a preferred traditional hunting area.297 It sought to obtain a bulk sample of coal from this tenure in order to determine the commercial viability of exploiting this resource and whether to apply for subsequent approval to exploit it. Additionally, it sought to test a new technology for the mining of coal known as the \u00E2\u0080\u009CAddcar System.\u00E2\u0080\u009D298 The petitioners, the West Moberly First Nation, sought a Court order to quash the decisions on the basis of inadequate consultation and accommodation of their Treaty 8 hunting rights. They claimed that in issuing the permits the subject of the impugned decisions, the Crown had failed to consult adequately and meaningfully concerning their Treaty 8 right to hunt caribou, and had failed to reasonably accommodate their hunting rights. Specifically, they alleged that the first two decisions were made without proper consideration of their right to hunt caribou in the affected area as part of their traditional seasonal round, and without making adequate provision for the protection and restoration of those caribou, described as the Burnt Pine caribou herd (BPCH).299 The petitioners enlivened this cause of action for a breach of the duty to consult following the Province\u00E2\u0080\u0099s failure to implement a rehabilitation plan for the BPCH. Prior to this application for judicial review, the West Moberly First Nation had sought that the Province implement a recovery plan for this herd.300 They noted its vulnerable conservation status with the population of which it is a sub-species, being federally listed under the Species at Risk Act, 2002 (SARA).301 The BPCH forms part of the Southern Mountain population of Woodland Caribou, which is a species listed as \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0297 West Moberly at para 21. 298 id at para 32. 299 id at para 2. 300 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit # 1 of Roland Willson sworn 19 October 2009) at para 86; See also Garson JA\u00E2\u0080\u0099s account of the consultation and meetings of 5 and 12 August 2009 in which West Moberly First Nation concluded that \u00E2\u0080\u009Ca real recovery plan\u00E2\u0080\u009D should be implemented as well as legal protection for the BPCH. In West Moberly at para 278. 301 Species At Risk Act SC 2002, c 29. \t \u00C2\u00A0\t \u00C2\u00A0 93\t \u00C2\u00A0\u00E2\u0080\u009Cthreatened\u00E2\u0080\u009D under SARA. Census data at the time of the application indicated the BPCH, which traditionally inhabits the land included within FCC\u00E2\u0080\u0099s mineral tenure, had been reduced to 11 members.302 However, the principal motivation for bringing the proceedings was not species conservation per se, but was part of an attempt to rejuvenate the population so as to permit its hunting, which traditionally, was integral to their way of life and identity as Aboriginal people. The significance of the Burnt Pine caribou herd to the West Moberly First Nation The evidence of petitioner Chief Willson of the West Moberly First Nation and, in an abridged form, the judgment of Finch CJ, provide insight into the importance of hunting caribou to the way of life of the West Moberly First Nation. The caribou are important as a food source but their significance far exceeds subsistence purposes. The evidence established, first, that the Mountain Dunne-Za historically were hunters who followed game\u00E2\u0080\u0099s seasonal migrations and redistributions based on their knowledge and understanding of animal behaviour. In their seasonal round, the Dunne-Za hunted ungulate species, including moose, deer, elk and caribou, in addition to birds and fish.303 Moose appeared to be the most important food source, but caribou hunting was important, especially in the spring. The animals were taken in large numbers when available, and the meat was preserved by drying. Dry meat was an important year-round food source for the Mountain Dunne-Za.304 Further, the Dunne-Za utilized the whole of the Caribou, from which they made clothing, bags, tools and utensils.305 Thirdly, Caribou utilize specific habitats different from other ungulate species. West Moberly hunters would go to these areas to hunt caribou. Their \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0302 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) at para 86. 303 West Moberly at para 22. 304 ibid. See also Anne Cubbit, Hugh Brody, Treaty 8 Country [Video recording], [Canada]: Treaty 8 Film Collective; Vancouver: Moving Images Distribution, 1982. 305 id at para 23 and Willson, supra, note 300 at para 9. \t \u00C2\u00A0\t \u00C2\u00A0 94\t \u00C2\u00A0traditional ecological knowledge includes knowledge of the use of the land by animals including Caribou. This knowledge is an integral component to their traditional mode of life.306 Finally, the evidence provided that: The Mountain Dunne-Za valued the existence of all species, including Caribou, and treated them and their habitat with respect. They knew where the caribou\u00E2\u0080\u0099s calving grounds were, and where the winter and summer feeding grounds were located. The people felt and feel a deep connection to the land and all its resources, a connection they describe as spiritual. They regarded the depopulation of the species they hunt as a serious threat to their culture, their identity and their way of life.307 Consistent with their concern and taking what action they could,308 the West Moberly First Nation passed a law in the 1970\u00E2\u0080\u0099s, banning their peoples\u00E2\u0080\u0099 hunting of caribou. This is the moratorium to which I have referred in Chapter 2. As to the existence of the duty to consult and the adequacy of its fulfillment, all parties agreed the Crown was required to consult West Moberly on the basis of its treaty right to hunt. However, the parties differed as to the nature and ambit of that right. Similarly, the parties advanced opposing submissions as to whether the Crown had adequately consulted and accommodated West Moberly's concerns. I proceed to examine the findings and rationale in relation to the principal issues in this matter and in doing so, I explore the extent to which each decision maker, commencing with the statutory decision maker of the relevant provincial ministry, and culminating with the judges of the Court of Appeal of British Columbia, engaged with the Indigenous legal traditions contained in varying degrees within the evidence before them. In doing so, I seek to decipher the underlying or \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0306 Willson, supra note 300 at para 8. 307 West Moberly at para 25. 308 id at para 118. \t \u00C2\u00A0\t \u00C2\u00A0 95\t \u00C2\u00A0governing rationale of the decision. Is the decision maker recognising Indigenous law? Is s/he balancing economic and other interests? To what extent does Indigenous law substantively influence the decision maker\u00E2\u0080\u0099s reasoning? Additionally, my intent is to evaluate how the decision maker sees these legal traditions when they are brought before it. Are they being recognized as sources of legitimate legal authority? To what extent are these decision makers incorporating notions of Indigenous law into their decision making? To what degree are they recognizing and confirming or affirming a role for it in the decision making process? What does it mean to appropriately engage with or take into account, Indigenous law? What is the standard I am using to evaluate the successive decision making? I am not sure it is appropriate to have a single inflexible standard. However some guidelines are: is the decision maker recognizing Indigenous legal traditions as legitimate law that is of equivalent weight and status as Canadian law? Is it equally as influential? Or in the decision making calculus, is it relegated to the status of an interest? Secondly, does the decision maker recognize that Indigenous law emanates from a different source than State based law? Thirdly, does the decision maker examine the substance of Indigenous law, or is it enough that s/he confirms processes that provide space for Indigenous law? In considering these guidelines it is appropriate to consider what is said as well as what is unsaid. Omissions are revealing. 4.1 \u00E2\u0080\u009CFirst instance:\u00E2\u0080\u009D administrative decision makers and the statutory decision maker In the effort to decipher the extent to which the statutory decision makers were attentive to the Indigenous legal traditions contained within the initial submission of the West Moberly First Nation, I must acknowledge an evaluative limitation. I lack the reports of the decision makers, \t \u00C2\u00A0\t \u00C2\u00A0 96\t \u00C2\u00A0namely the Chief inspector of Mines and Inspector of Mines, and any internal ministerial advice that informed their decisions. As such, I am compelled to rely upon the extracts of these that the respective judges\u00E2\u0080\u0099 analyses contain in the reported cases. In relation to what the administrative decision makers had before them to assess, I note that the West Moberly First Nation provided the document I Want to Eat Caribou Before I Die, the initial submission, to the Ministry of Energy, Mines and Petroleum Resources (MEMPR) in the pre-trial consultation phase.309 The content of the submissions contained within it does not differ materially from the submissions before the Supreme Court of British Columbia. As such, I am not going to elaborate upon the submissions relating to the issues of Canadian law contained within the initial submission in any detail. The Ministry of Environment In relation to the role of the Ministry of Environment (MOE), they were not the statutory decision maker, however, their advice informed the statutory decision makers. Dr Dale Seip, wildlife ecologist with the Crown\u00E2\u0080\u0099s Northern Interior Forest Region, commented on 25 September 2008, on FCC\u00E2\u0080\u0099s planned operations as such: \u00E2\u0080\u009Cthe proposed activities occur directly on core winter range of this threatened Caribou herd and will result in the destruction of critical caribou habitat.\u00E2\u0080\u009D310 Similarly, Dr Seip noted that \u00E2\u0080\u009Cactivity in the sampling area may deter Caribou movement along the ridge and preclude their use of the large block of core habitat on the northern edge of the ridge.\u00E2\u0080\u009D311 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0309 See the petitioners\u00E2\u0080\u0099 submissions to the Supreme Court of British Columbia, supra note 302 at para 24, provides that the West Moberly First Nation forwarded to the Crown a 98 page document being, \u00E2\u0080\u009Cthe initial extensively researched and written submission of the West Moberly people concerning First Coal Corporation\u00E2\u0080\u0099s Goodrich property.\u00E2\u0080\u009D 310 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 22. 311 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 97\t \u00C2\u00A0Pierre Johnstone, ecosystem biologist with the MOE wrote to the Inspector of Mines, Victor Koyanagi raising specific concerns about the FCC project on 16 December 2008. As a further example of internal advice provided to the statutory decision maker, Mr Johnstone articulated similar concerns with habitat destruction.312 Subsequent to this, Dale Seip commented on FCC\u00E2\u0080\u0099s Caribou Mitigation and Monitoring Plan (CMMP) on 9 March 2009 as such: The mitigation plan does an excellent job of attempting to reduce the environmental impacts of the bulk sampling and exploration program on Caribou. However, the program will still destroy or compromise substantial amounts of core winter and summer habitat for the BPCH\u00E2\u0080\u00A6If the Government intends to conserve and recover the BPCH, habitat conditions need to be maintained or improved. Allowing additional habitat destruction is incompatible with efforts to recover the populations.313 This concern with habitat destruction falls within the ambit of a species conservation concern, which derives from an environmental science knowledge base. Moreover, it constitutes an anthropocentric concern with the loss of species that betrays no concern with addressing impact on Indigenous law as contained within the initial submission, such as an impact on the West Moberly First Nation\u00E2\u0080\u0099s relationship with Caribou. However, it is unclear whether the MOE had knowledge of the content of the initial submission or if in this capacity as advisor to the MEMPR regarding the impact of the proposed works, it was even required to consider it. The MOE was not itself a statutory decision maker. Falling within the environment portfolio of the provincial ministries, as ministerial employees, they likely had no duty to \u00E2\u0080\u009Clearn\u00E2\u0080\u009D or similar obligation to take into account \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0312 id at para 23. 313 id at para 57. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 98\t \u00C2\u00A0Indigenous values in their assessments of the impact of the proposed works. As such, they likely assessed the proposed works in accordance with their policy mandate. In summary, these Ministerial employees reached an identical conclusion to the petitioners to reject the bulk sampling and exploration the subject of the permit amendments. However, they did so pursuant to a different knowledge base to the petitioners, who rely primarily upon Indigenous values.314 The Ministry of Energy, Mines and Petroleum Resources: the statutory decision maker The reasoning of the MEMPR is revealed in their document, \u00E2\u0080\u009CConsiderations to Date,\u00E2\u0080\u009D (MEMPR Considerations) which constitutes information the ministry was considering with respect to the FCC operation as at 20 July 2009. In defiance of the advice of the Ministries of Environment and of Forests and Range (MOFR), which MEMPR seems to have ignored, the MEMPR Considerations notes that maintaining or increasing the population of the BPCH is not currently planned.315 The Ministry took the position that as the BPCH constitutes a very small portion of the total population of Caribou herds in the territory, the opportunity for the petitioners to hunt Caribou in their traditional territory will not be significantly reduced.316 I note that in my experience at least, contravention of the advice of a crown ally is a common occurrence.317 The MEMPR has a different policy mandate to the MOE. It would not be unusual for them to disagree in their position with respect to various applications, owing to their differing mandates and \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0314 Which they bolstered with species conservation arguments. 315 West Moberly at para 27. 316 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 29. 317 For example, in my brief experience the NSW Departments of Planning, and of Environment, Climate Change and Water respectively, frequently held varying positions with respect to Native vegetation policy amendments. I observed such differences while participating in negotiations that sought to reduce the incidence of \u00E2\u0080\u009Cdual consents\u00E2\u0080\u009D in development assessment, in response to a 2008 Cabinet Directive. \t \u00C2\u00A0\t \u00C2\u00A0 99\t \u00C2\u00A0priorities. I question the influence of policy in such decisions. Similarly, were there any overriding economic imperatives? This is a point which I explore in Chapter 5. Secondly, as to the interpretation of the treaty right, the MEMPR Considerations quotes the take up provision without referring to the SCC\u00E2\u0080\u0099s comments concerning the impact of the oral promises made by Crown representatives at the treaty\u00E2\u0080\u0099s inception.318 Given as I expand upon below, that treaties are a fusion of Canadian and Indigenous law, does such flawed interpretation, ignorant of the impact of the oral promises, also constitute a failure to respect the Indigenous legal traditions contained within the treaty? Procedurally, I note that MEMPR reached its decision to a large extent based on timing. As Garson JA observes, after the final consultation meeting of 12 August, 2009: It was evident that by this time a decision had to be made. Dr Dale Seip had described the CMMP as doing \u00E2\u0080\u009Can excellent job of attempting to reduce the environmental impacts of the bulk sample and exploration program on Caribou\u00E2\u0080\u00A6But he concluded that \u00E2\u0080\u00A6if the government intended to conserve and rehabilitate this small caribou herd\u00E2\u0080\u009D granting permits was \u00E2\u0080\u009Cincompatible with efforts to recover the population.319 The Statutory Decision Makers were thus faced with two incompatible positions. After years of consultation in which the competing interests were fully explored, \u00E2\u0080\u009Csomebody [had] to bring consultation to an end and weigh up the respective interests: Beckman at [84]. The Statutory Decision Makers did just that\u00E2\u0080\u00A6They made their decisions to approve the permits on the basis of the generality \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0318 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 28. By the \u00E2\u0080\u009Ctake up\u00E2\u0080\u009D provision, I am referring to the clause within several of the historical treaties that provides: \u00E2\u0080\u009CAnd Her Majesty the Queen hereby agrees with the said Indians that they shall have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes. [Emphasis added.]\u00E2\u0080\u009D See Canada, Treaty No. 8 made June 21, 1899 and Adhesions, Reports (Ottawa: Queen's Printer, 1966), online: http://www.aadnc-aandc.gc.ca/eng/1100100028813/1100100028853#chp4. Cited in West Moberly at para 53. 319 West Moberly at para 280. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 100\t \u00C2\u00A0of the treaty right in question, limited impact of the proposed permits on that right and incorporation of accommodation and mitigation measures into the project.320 As to the extent to which the MEMPR was attentive to the Indigenous legal traditions contained within the initial submission, the weighing of \u00E2\u0080\u009Crespective interests\u00E2\u0080\u009D and the terminology of \u00E2\u0080\u009Cinterests\u00E2\u0080\u009D in particular, which ignores the fact of the decision making calculus containing constitutionally protected treaty rights, and not merely interests equivalent to those of the proponent\u00E2\u0080\u0099s mineral tenure, suggests the Ministry\u00E2\u0080\u0099s approach was very much a balancing exercise that appears to have ignored the petitioners\u00E2\u0080\u0099 Indigenous legal traditions. Narrating the MEMPR\u00E2\u0080\u0099s approach, Finch CJ held that the decision reached by MEMPR based on the CMMP and the position put forward by the petitioners were \u00E2\u0080\u009Cas two ships passing in the night. There was no real engagement of the petitioners\u00E2\u0080\u0099 position. It was not a position that could be dismissed out of hand, supported as it was by the expert opinions of the government\u00E2\u0080\u0099s own biologists, Dr Seip and Pierre Johnstone.\u00E2\u0080\u009D321 Further, \u00E2\u0080\u009CMEMPR never considered the possibility that the petitioners\u00E2\u0080\u0099 position might have to be preferred. It based its concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice.\u00E2\u0080\u009D322 Commencing consultation on that basis did not recognize the full range of possible outcomes, and amounted to nothing more than an opportunity for the First Nations \u00E2\u0080\u009Cto blow off steam.\u00E2\u0080\u009D323 The MEMPR\u00E2\u0080\u0099s lack of any genuine engagement with the substance of the petitioners\u00E2\u0080\u0099 position, which was infused with impact upon the legal traditions of the Dunne Za, chiefly, on the treaty \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0320 West Moberly at para 280. Emphasis added. 321 West Moberly at para 147 Emphasis added. 322 id at para 149. Emphasis added. 323 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 101\t \u00C2\u00A0protected hunting right and the seasonal round, affirms the statutory decision maker was neither sensitive nor attentive to these legal traditions and the petitioners\u00E2\u0080\u0099 genuine concerns. It did not acknowledge the seasonal round and hunting right as having the status and weight of law. Rather, this was an interest that was capable of being defeated. In response to the West Moberly First Nation\u00E2\u0080\u0099s request that the Crown engage in land use planning, the MEMPR Considerations states this request is met by the Economic Benefits Agreement (EBA) to which West Moberly First Nation is a party and for which it had received extensive funding.324 MEMPR\u00E2\u0080\u0099s understanding was that the EBA provided a mechanism for addressing West Moberly First Nation\u00E2\u0080\u0099s concerns regarding cumulative impacts and efforts to recover caribou populations. The government\u00E2\u0080\u0099s intention that certain concerns such as cumulative impacts can legally be addressed and absorbed through an economic benefits agreement, while being a slight diversion from my principal inquiry, is a purposeful inquiry that is worthy of comment. The MEMPR Considerations notes, \u00E2\u0080\u009Cthrough promotion, facilitation and participation in planning processes flowing from the EBA as well as Caribou task force, MEMPR will work towards addressing the issues of cumulative impacts.325 The EBA in question, namely the Amended Economic Benefits Agreement, 2009, dated 17 December 2009, between the Province and Doig River, Prophet River and West Moberly First Nations, provides inter alia, for two forms of payment to the First Nations by the Province: an equity payment following the signing of at least four completed agreements,326 and an annual \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0324 West Moberly at para 275. 325 West Moberly at para 276. Emphasis added. 326 See at 3.2.2 of the EBA. \t \u00C2\u00A0\t \u00C2\u00A0 102\t \u00C2\u00A0payment calculated in accordance with a detailed formula.327 This regulatory approach, involving the exchanging of biodiversity for money, resembles a primitive form of biodiversity trading. However, unlike other established biodiversity trading schemes it is not supported by a consistent methodology for calculating transactions. For example, what precise value is attributed to the loss of the BPCH from this lump sum payment within the EBA? And how are the Caribou to be \u00E2\u0080\u009Coffset\u00E2\u0080\u009D elsewhere? In purporting to use this regulatory approach as a means of softening the loss of caribou, the Province is effectively sanctioning the loss of biodiversity by permitting impediments to the exercise of treaty rights. Effectively we have a treaty within a treaty.328 By contrast, governments enter into similar agreements with proponents for development in order to resolve development assessment disputes, such as where a development necessitates impact upon threatened species. In that case, biodiversity credits, attained by improving and maintaining biodiversity values elsewhere, are exchanged for the ability to impact threatened species on the development site.329 But is the current example an appropriate regulatory response for addressing impediments to constitutionally protected treaty rights? How can money \u00E2\u0080\u009Coffset\u00E2\u0080\u009D the irreplaceable value of spiritual significance and a reduced capacity to exercise a way of life? As a legal question, I question the fungibility of constitutionally protected treaty rights. Moreover, does MEMPR\u00E2\u0080\u0099s intention of using the EBA as a means of \u00E2\u0080\u009Cnegotiating out\u00E2\u0080\u009D concerns, in the sense of removing \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0327 See at 3.5.1 of the EBA. 328 I have analogized that there is a \u00E2\u0080\u009Ctreaty within a treaty,\u00E2\u0080\u009D as the Province of British Columbia has entered into an agreement (the EBA) that operates in addition to Treaty 8, which is an agreement binding the Federal Government and members of Treaty 8. Viewed in this way and from the point of view of the West Moberly First Nation, the EBA constitutes an agreement within an existing agreement. 329 I am referring to a biodiversity trading scheme of another jurisdiction, namely the BioBanking Scheme currently operating in NSW pursuant to Part 7A of the Threatened Species Conservation Act (1995). Other governments operate comparable biodiversity trading schemes. \t \u00C2\u00A0\t \u00C2\u00A0 103\t \u00C2\u00A0them from discussion, evidence a further failure to respect the Indigenous legal traditions of the Dunne Za, including those contained within the treaty right? I raise a legitimate inquiry, the general tenor of which was picked up on in the more recent decision of Louis v. British Columbia (Minister of Energy, Mines, and Petroleum Resources) 2013 BCCA 412. In Louis, the impugned decision in question was the grant of a permit amendment that permitted the construction of a mill and expansion infrastructure. This permit formed one of many permits issued by the MEMPR and MOFR in association with the expansion of an existing molybdenum mine in north central British Columbia, approximately 10 km removed from the main community of the Stellat\u00E2\u0080\u0099en First Nation.330 The Court of Appeal affirmed unanimously the trial judge\u00E2\u0080\u0099s decision that MEMPR\u00E2\u0080\u0099s consultation had been adequate.331 From the perspective of the Stellat\u00E2\u0080\u0099en First Nation, meaningful consultation had failed to occur owing to fundamental differences between the Stellat\u00E2\u0080\u0099en and the Crown as to the scope of consultation required to adhere with the Crown\u00E2\u0080\u0099s duty.332 In its final ground of appeal, the Stellat\u00E2\u0080\u0099en sought a ruling that the Crown\u00E2\u0080\u0099s offer of an Economic Community Development Agreement (ECDA) did not meet the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0330 Louis at para 6. See also Louis at para 17 for full list of the permit amendments sought to facilitate the expansion. 331 id at para 122 and 126. 332 The judicial review application in Louis related to a permit that approved construction of a mill and the expansion of infrastructure: Louis at para 17 and 56. Throughout the consultation in relation to various permit applications associated with the expansion of the mine, the Stellat\u00E2\u0080\u0099en First Nation submitted that meaningful consultation had failed to occur in relation to the entirety of the expansion project. It maintained that \u00E2\u0080\u009Conly consultation on the entire mine expansion project would meet the Crown\u00E2\u0080\u0099s consultation duties.\u00E2\u0080\u009D See Louis at para 25 and 27. It objected to the splitting of the permitting process and submitted it was \u00E2\u0080\u009Cunreasonable for the Crown to divide up its consultation into numerous specific sub permits\u00E2\u0080\u009D when it was never consulted upon whether the mine expansion as a whole should be allowed: Louis at para 59 and 32. Further, in a legal setting preceding the SCC\u00E2\u0080\u0099s decision in Rio Tinto, it objected to a lack of previous consultation on the existing mine: Louis at para 42. Owing to the Crown and the Stella\u00E2\u0080\u0099ten First Nation\u00E2\u0080\u0099s fundamental disagreement as to the scope of consultation required, \u00E2\u0080\u009Cconsultation efforts faltered at a nascent stage.\u00E2\u0080\u009D The Crown was not prepared to address past disturbance caused by the existing mine. While for the Stella\u00E2\u0080\u0099ten, consultation was \u00E2\u0080\u009Ca non starter\u00E2\u0080\u009D unless the consultation included the past disturbance. See Louis at para 65. \t \u00C2\u00A0\t \u00C2\u00A0 104\t \u00C2\u00A0honour of the Crown as an appropriate form of accommodation.333 In this way, Louis evidences an extension of my earlier concern, which is expressed but taken further, such that the notion of an EBA or similar being able to be appropriate accommodation is not only inappropriate, but fails to meet the honour of the Crown. Interestingly, Groberman J in Louis, avoided having to tackle the \u00E2\u0080\u009Cappropriateness question,\u00E2\u0080\u009D by simply accepting without analyzing, the MEMPR\u00E2\u0080\u0099s interpretation of the ECDA as existing as a separate effort, additional to and beyond, formal accommodation measures.334 Groberman J agreed with the characterization of the ECDA as separate from consultation and accommodation, and therefore, immune from scrutiny. Instead of forming part of the accommodation initiatives, he characterized it as falling within the ambit of \u00E2\u0080\u009Cother discussions,\u00E2\u0080\u009D335 permitted to occur between the Crown and a First Nation, and comparable to ongoing treaty negotiations, which Haida contemplates as occurring simultaneous to consultation efforts.336 Arguably this is a convenient interpretation that contrasts the MEMPR\u00E2\u0080\u0099s position in West Moberly, where an EBA to address concerns such as cumulative impacts and efforts to recover Caribou populations, was put forward in lieu of land use planning, as being an appropriate component of the accommodation package. What has brought about this change of position in the MEMPR? Is this indicative of an internal ministerial policy change in relation to the form of accommodation measures? If so, it illustrates the influence that government policy can have in the interpretation of constitutional provisions, in \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0333 Louis at para 73 and 119. 334 id at para 119. 335 id at para 120. 336 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 105\t \u00C2\u00A0the implementation of the duty to consult, and in the development of law governing consultation between the Crown and First Nations governments.337 In conclusion, extracts from the judgments at least, indicate that, to the extent to which the petitioners\u00E2\u0080\u0099 legal traditions had been communicated to these administrative decision makers, the statutory decision maker and the ministry upon whose advice it relied, were not attentive to this Indigenous law. It did not have a role in their decision making processes and provision of expert advice. 4.2 At trial: The Supreme Court of British Columbia In relation to what the Supreme Court of British Columbia was tasked with assessing, the petitioners\u00E2\u0080\u0099 submissions before the Supreme Court of British Columbia did not differ materially from the submissions contained in Part Three of the Initial Submission, or from those before the Court of Appeal.338 I document the parties\u00E2\u0080\u0099 respective submissions in detail in Part 3.3 below. At first instance, Williamson J of the Supreme Court of British Columbia held that the provincial Crown did not meaningfully consult with West Moberly First Nation, and that the accommodation put in place was inadequate in the circumstances. In addition to this declaration, he stayed the effect of issuing the amendment to the Advanced Exploration Program, and suspended the effect \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0337 I note that my original fieldwork proposal aimed to make recommendations to policy makers implementing the duty to consult. While I might not here make such recommendations, one can arguably see the influence of Government policy in the duty\u00E2\u0080\u0099s implementation by the Crown. 338 See West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009). The Initial Submission comprises four parts. I extracted the Dunne Za law from Part Two, entitled \u00E2\u0080\u009CMountain Dunne Za and Wah Stzee.\u00E2\u0080\u009D Part Three entitled, \u00E2\u0080\u009CSubmissions with respect to the content of MEMPR\u00E2\u0080\u0099s Duty to Consult and Accommodate West Moberly\u00E2\u0080\u0099s Treaty 8 Rights,\u00E2\u0080\u009D contains submissions regarding the issues of Canadian law. \t \u00C2\u00A0\t \u00C2\u00A0 106\t \u00C2\u00A0of the clearing decision for ninety days. Further, Williamson J ordered that within this ninety day period the Province in consultation with the petitioners was to \u00E2\u0080\u009Cproceed expeditiously to put in place a reasonable, active plan for the protection and augmentation of the Burnt Pine caribou herd, taking into account the views of the petitioners, as well as the reports of\u00E2\u0080\u009D the Province\u00E2\u0080\u0099s wildlife ecologists and biologists (the augmentation order).339 Williamson J adopted West Moberly First Nation\u00E2\u0080\u0099s understanding of the meaningful right to hunt as both location and species specific. He concluded that the right to hunt had to be \u00E2\u0080\u009Cmeaningful,\u00E2\u0080\u009D and affirmed the Mikisew finding that \u00E2\u0080\u009Ca meaningful right to hunt means a right to hunt in \u00E2\u0080\u009Cits\u00E2\u0080\u009D (here West Moberly\u00E2\u0080\u0099s) traditional territories.340 With respect to what Williamson J\u00E2\u0080\u0099s reasoning reveals about the extent to which Dunne Za law contained within the initial submission and which was before him in evidence, influenced his decision making: Williamson J acknowledged that the affidavit evidence \u00E2\u0080\u009Cdiscloses that West Moberly\u00E2\u0080\u0099s harvesting practice included a traditional seasonal round, which meant that hunters travelled to particular preferred areas within the treaty territory during specific times of the year, including the area impacted by the First Coal mining operation.\u00E2\u0080\u009D341 Moreover, he held \u00E2\u0080\u009Cthe Court is required to take into account West Moberly\u00E2\u0080\u0099s treaty protected right to hunt, including the traditional seasonal round, and the impact of these decisions upon that right. Here, I conclude that the treaty protected right is the right is to hunt caribou in the traditional seasonal round in the territory effected by the First Coal Operation.\u00E2\u0080\u009D 342 As such, Williamson J specifically \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0339 Order 3 of the decision of the Supreme Court of British Columbia. See note 308 supra at para 83. Cited in West Moberly at para 3. 340 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 62. 341 id at para 16. 342 id at para 63. \t \u00C2\u00A0\t \u00C2\u00A0 107\t \u00C2\u00A0acknowledged the existence of the traditional seasonal round. In this way, he explicitly acknowledged the Indigenous law informing the content of the treaty right. In addition, Williamson J found in favour of the West Moberly First Nation and arguably took into account their legal traditions and value of hunting Caribou, to the extent that he actually made an order to augment the Caribou herd. This order was contentious for several reasons, including that the petitioners did not seek it. In a climate in which environmental advocacy groups were seeking the Federal Environment Minister to recommend to the Governor in Council that it make an emergency order for the protection of the woodland caribou species,343 to have a trial court commanding efforts to recover a herd, a sub-species whose protection is not caught within the ambit of the SARA, which applies to the subject Treaty 8 land, raises the issue of the consistency of this court order with the SARA protections, as well as with the requirements SARA imposes on the Federal, not provincial, Environment Minister. These issues were not raised in the Court of Appeal proceedings, and even if they were, they would have been moot given the augmentation order was abandoned.344 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0343 See Adam v Canada (Environment) 2011 FC 962. 344 Nonetheless, it is interesting to consider these given that the Court of Appeal did not appear to rule definitively upon the augmentation order\u00E2\u0080\u0099s validity. The majority removed this order, reasoning as follows. Emphases are added: [163] Having said that, it is not in my respectful view necessary to reach a final conclusion on whether the judge erred in declaring a specific form of accommodation. The Judicial Review Procedure Act would appear to grant a sufficiently broad discretion to make such an order but this, and other courts, have shown a reluctance to do so, so as not to impair further consultation. [164] For the reasons expressed above, I have concluded that the judge was correct in holding that the consultation process was not meaningful, although for somewhat more expansive reasons than he gave on that issue. For that reason, it seems to me the proper remedy is to remit the matter for further consultation between the parties, having regard for what the scope of the consultation ought properly to include. [165] I make no further comment on the ambit of a judge\u00E2\u0080\u0099s discretion to give specific directions as provided for in ss. 5 and 6 of the Judicial Review Procedure Act. However, it is preferable in this case that the specific direction be set aside so that the parties may resume consultation as indicated, and unfettered. \t \u00C2\u00A0\t \u00C2\u00A0 108\t \u00C2\u00A0As to the remaining Indigenous legal traditions identified above, namely, the principle of respect and its accompanying practices, as well as the moratorium, the judgment made no mention of the moratorium or of the principle of respect. Williamson J comments twice as to the primary concern of the West Moberly First Nation. First, he concludes, \u00E2\u0080\u009Cthe diminished state of the herd is at the heart of the West Moberly concerns.\u00E2\u0080\u009D345 Similarly, he notes that \u00E2\u0080\u009Cthe prime concern of the West Moberly is the real potential for the extirpation of the Burnt Pine caribou herd.\u00E2\u0080\u009D346 From such findings it might appear that he was not sufficiently mindful of the other Indigenous law that informed the petitioner\u00E2\u0080\u0099s claim and as contained within the initial submission, notably, the principle of respect and its accompanying practices. However, I think such inference would be difficult to substantiate. Moreover, in the task of evaluating such an inference, it would be necessary to consider how well this Indigenous law was presented to the Supreme Court as Indigenous law that was capable of being upheld. I address this point in Chapter 6. Nevertheless, the inclusion of cultural reasons within Williamson J\u00E2\u0080\u0099s ultimate finding, namely, his satisfaction that \u00E2\u0080\u009Cthe Crown recognized that it had a duty to consult with and accommodate reasonably, the concerns of the West Moberly,\u00E2\u0080\u009D 347 and lack of satisfaction that \u00E2\u0080\u009Cin the circumstances the Crown consulted meaningfully, nor that the Crown reasonably accommodated \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0So, although Finch CJ noted that the JRP Act appears to grant a sufficiently broad discretion to make such an order, he overtly declared that he did not \u00E2\u0080\u009Creach a final conclusion on whether the judge erred in declaring a specific form of accommodation.\u00E2\u0080\u009D344 Similarly, his disinclination to make \u00E2\u0080\u009Cfurther comment on the ambit of the Judge\u00E2\u0080\u0099s discretion to give such directions as provided for in ss 5 and 6 of the JRP Act,\u00E2\u0080\u009D344 sustains the view that he did not rule definitively on the validity of the augmentation order. 345 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 20. Emphasis added. 346 id at para 51. Emphasis added. 347 id at para 75. \t \u00C2\u00A0\t \u00C2\u00A0 109\t \u00C2\u00A0West Moberly\u00E2\u0080\u0099s concerns about their traditional seasonal round of hunting caribou for food, for cultural reasons, and for the manufacture of practical items,348 suggests that he acknowledged some of the cultural reasons contained within the initial submission and submissions to the Supreme Court of British Columbia. Cultural reasons could be sufficiently expansive to encompass the West Moberly\u00E2\u0080\u0099s relationship with the Caribou herd. In conclusion, to the extent to which they permeated the legal submissions, it seems that Williamson J\u00E2\u0080\u0099s findings were quite sensitive to the petitioners\u00E2\u0080\u0099 Indigenous legal traditions. 4.3 The Court of Appeal of British Columbia At the Court of Appeal, the clearing decision was not an issue.349 The appeal proceedings concerned only the first two decisions of the respective mining inspectors. The court was not unanimous. Madam Justice Garson provided a dissenting opinion. The majority of the Court of Appeal dismissed the Province\u00E2\u0080\u0099s appeal, agreeing with Williamson J that the Crown\u00E2\u0080\u0099s consultation had not been meaningful, and therefore, not reasonable. However, it set aside the accommodation ordered by Williamson J to permit further consultation. In these appeal proceedings there was no new evidence and the matter proceeded by way of the existing affidavit evidence. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0348 ibid. Emphasis added. 349 West Moberly at para 5. \t \u00C2\u00A0\t \u00C2\u00A0 110\t \u00C2\u00A04.3.1 Submissions of the appellants: the Province of British Columbia and First Coal Corporation The Province acknowledged its duty to consult which it said was fulfilled.350 It argued Williamson J erred in holding that the Crown\u00E2\u0080\u0099s consultation and accommodation had not been meaningful and was unreasonable.351 The interpretation issue Specifically, the Crown argued Williamson J erred in interpreting West Moberly First Nation\u00E2\u0080\u0099s Treaty 8 hunting right as a \u00E2\u0080\u009Cspecies specific\u00E2\u0080\u009D right, in holding that West Moberly First Nation\u00E2\u0080\u0099s interests could only be accommodated in one specific way, and in evaluating the Crown\u00E2\u0080\u0099s consultation process from that perspective.352 It took issue with the precision with respect to species and location, with which the right was characterized, namely, as a right to hunt caribou within the traditional seasonal round in the territory affected by the First Coal operation.353 With respect to species, it maintained that the judge erred in holding the petitioners had a specific treaty right to hunt and harvest the BPCH,354 that such a narrow approach would yield the \u00E2\u0080\u009Cbalkanization\u00E2\u0080\u009D of treaty rights, and that the hunting right is not so confined. Rather, it characterized the hunting right as a right to hunt anywhere in the petitioners\u00E2\u0080\u0099 traditional Treaty 8 territories, and for such species as may be available. Further, with respect to its geographical scope, it interpreted the right as a right to hunt throughout all of the Treaty 8 Territory.355 In addition, it submitted the hunting right is subject to the Crown\u00E2\u0080\u0099s right to take up such tracts of land as may be required for, inter alia, mining. Accordingly, the hunting right includes other land uses as provided for in the Treaty. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0350 id at para 6. 351 id at para 7. 352 id at para 6 and 59. 353 id at para 56. 354 ibid. 355 id at para 57. \t \u00C2\u00A0\t \u00C2\u00A0 111\t \u00C2\u00A0The delegation issue Further, the Province alleged Williamson J erred in holding the departmental officials to an unreasonable standard as to the scope of their delegated authority, as they were not authorized to address all Aboriginal issues and concerns (the delegation issue).356 The scope of the duty to consult FCC supported the Province\u00E2\u0080\u0099s appeal. In addition to the Province\u00E2\u0080\u0099s submissions, it took issue with the scope of the duty to consult, and in particular, the cumulative effects or the \u00E2\u0080\u009CRio Tinto issue.\u00E2\u0080\u009D FCC argued that Williamson J erred in holding that the scope of the Crown\u00E2\u0080\u0099s duty to consult included consideration of the cumulative effect of \u00E2\u0080\u009C\u00E2\u0080\u009Cpast wrongs\u00E2\u0080\u009D and potential future developments,\u00E2\u0080\u009D rather than focusing on the potential impact of the challenged permits.357 It maintained the scope of the duty to consult was limited to the impact of the amended sampling and exploration permits that were challenged on this judicial review.358 To substantiate its position FCC relied on its understanding of the SCC\u00E2\u0080\u0099s decision in Rio Tinto Alcan v Carrier Sekani Tribal Council 2010 SCC 43.359 FCC proclaimed that Rio Tinto established first, that the Crown\u00E2\u0080\u0099s duty to consult is confined to adverse impacts flowing from the specific Crown proposal at issue, not to larger adverse impacts of the project of which the subject proposal is a part. And secondly, that the subject of the consultation is the impact on the claimed rights of the current decision under consideration. Thirdly, FCC understood Rio Tinto to provide that prior and continuing breaches trigger a duty to consult only if the current decision could cause a novel adverse impact on a present claim or existing right. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0356 id at para 6. 357 id at para 8. 358 id at para 64. 359 id at para 65. \t \u00C2\u00A0\t \u00C2\u00A0 112\t \u00C2\u00A0The accommodation issue FCC also submitted Williamson J erred in his decision about what would constitute reasonable accommodation in the circumstances of this case. Specifically, it argued that Williamson J erred in law by rejecting FCC\u00E2\u0080\u0099s Caribou Mitigation and monitoring plan as a reasonable form of accommodation360 and by holding the Crown in breach of its duty to accommodate by failing to put in place \u00E2\u0080\u009Can active plan for the protection and augmentation of the BPCH.\u00E2\u0080\u009D361 FCC contended the potential impacts of the sampling and exploration projects were limited and the mitigation proposed was reasonable. MEMPR\u00E2\u0080\u0099s decision to grant the permits was reasonable and the judge should not have substituted his view of the matter for that of the decision maker.362 4.3.2 Submissions of the Attorney General of Alberta Alberta also supported the Province\u00E2\u0080\u0099s appeal. It also indicted Williamson J\u00E2\u0080\u0099s narrow characterisation of the Treaty right to hunt, arguing that Williamson J misinterpreted this as species specific, and erred in deciding a public policy question, namely, restoration of caribou, which is a matter within the authority of other branches of government.363 The Attorney General further submitted the focus should be on the reasonableness of the consultation process, rather than upon its outcome.364 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0360 id at para 8. 361 id at paras 155 to 156. 362 id at para 67. 363 id at para 10. 364 id at para 71. \t \u00C2\u00A0\t \u00C2\u00A0 113\t \u00C2\u00A04.3.3 Submissions of the Petitioners / respondents on appeal The petitioners responded that Williamson J correctly determined both the nature and scope of the petitioners\u00E2\u0080\u0099 Treaty 8 right to hunt and the seriousness of the impact that the mining exploration would have on that right. Further, they argued that he correctly held that the consultation process was unreasonable and that the proposed accommodation did not honorably balance the rights and interests at stake.365 The petitioners perceived two over-arching issues. The first is the nature and scope of the Treaty 8 hunting right guaranteed to the First Nations. The second is the reasonableness of the relief ordered by the chambers judge.366 Regarding the first issue, they submitted the statutory decision maker was wrong, that the petitioner\u00E2\u0080\u0099s right to harvest caribou and other game is rooted in the traditional seasonal round of the Mountain Dunne-Za, and to ignore this was to misapprehend the nature and scope of the duty to consult. They maintained that correctness is the standard of review for assessing the nature and scope of the duty to consult, that the statutory decision maker got this wrong and the chambers judge got it right. Further, they submitted that the Chambers Judge had proper regard for the text of Treaty 8 and for the Crown\u00E2\u0080\u0099s oral promises to the First Nations people. In relation to the adequacy of consultation, the petitioners argued the appropriate standard of review for assessing the process actually engaged in by the Crown is reasonableness, and that the consultation process engaged in by the MEMPR and the mitigation and accommodation measures it adopted from the CMMP, were unreasonable.367 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0365 id at para 11. 366 id at para 76. 367 id at para 78. \t \u00C2\u00A0\t \u00C2\u00A0 114\t \u00C2\u00A0The petitioners relied on the opinions of experts in the Ministries of Forests and Range and of Environment. Both said the proposed exploration activity, even with the mitigation proposed in the CMMP, would yield unacceptable adverse impacts to the caribou. It would destroy core winter habitat for the caribou, which is incompatible with recovery of the BPCH.368 As to the cumulative impacts or \u00E2\u0080\u009CRio Tinto issue,\u00E2\u0080\u009D they maintained the preservation of a resource is necessary for the continuing treaty rights to exploit that resource, that it is appropriate to consider cumulative impacts and that this case is distinguishable from Rio Tinto.369 Further, they contended the MEMPR\u00E2\u0080\u0099s decision to issue the amended permits failed to consider the petitioners\u00E2\u0080\u0099 right to hunt caribou according to the traditional seasonal round. 370 British Columbia and MEMPR mistakenly characterized the petitioners\u00E2\u0080\u0099 existing treaty right as an asserted but unproven and potential Aboriginal right. The treaty right existed and included the right to its meaningful exercise. It was an error of law for MEMPR to so mischaracterize the treaty right, and the consultation and accommodation were therefore unreasonable.371 As to the content of the duty to consult and accommodate, the petitioners argued that the chambers judge adequately assessed the seriousness of the potential adverse effects of MEMPR\u00E2\u0080\u0099s decisions on the affected treaty right. The MEMPR did not.372 The seriousness of the impact must take into account its effects on the First Nations peoples. One cannot assess those effects without considering the history of the relationship between the Crown and the First Nations. The historic decline of the caribou is a relevant concern because the impact of the proposed exploration will be \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0368 ibid. 369 id at para 79. 370 id at para 80. 371 id at para 81. 372 id at para 83. \t \u00C2\u00A0\t \u00C2\u00A0 115\t \u00C2\u00A0felt on the herd in its depleted condition. The new adverse impacts distinguished the case from Rio Tinto. As a result of these submissions, the Court of Appeal faced the task of resolving six issues. In relation to shedding some light on the extent to which the respective judges engaged with and took into account the petitioners\u00E2\u0080\u0099 legal traditions in their decision making, the interpretation issue is most illuminating. Nevertheless, I also examine the reasoning governing the findings in relation to the remaining principal issues namely, the scope of consultation and its adequacy.373 4.3.4 The content of consultation issue: what was the scope of the Duty to Consult? The appellants submitted the trial judge erred in considering past wrongs or the cumulative effect of past events that led to the depleted population of the BPCH as well as future events, namely the impact of a full mining operation, rather than simply the exploration programs authorized by the amended permits. This submission was twofold. Dealing first with the \u00E2\u0080\u009Cpast wrongs\u00E2\u0080\u009D limb, FCC maintained consultation should have been limited, as it was my MEMPR, to the immediate adverse impacts of the two amended permits and whatever steps were necessary to address and accommodate those impacts.374 Moreover, in embarking upon a consideration of the historical decline of the BPCH, the trial judge purported to redress \u00E2\u0080\u009Cpast wrongs.\u00E2\u0080\u009D375 The effect of these considerations on the Chambers Judge\u00E2\u0080\u0099s decision is evident in his holding that the Crown failed to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0373 I note that the Court also considered the further administrative law issue of the degree of oversight over or extent of intrusion a Court should have into the role of statutory decision makers and the ambit of decision makers\u00E2\u0080\u0099 delegated authority to decide Aboriginal legal issues (the delegation issue). This issue is less relevant for present purposes. It suffices to note that the Court found, at para 107 of West Moberly, that the Crown decision makers were not prevented by the scope of their delegated authority, \u00E2\u0080\u009Cfrom consulting whatever resources were required in order to make a properly informed decision,\u00E2\u0080\u009D including Treaty 8, and they did not properly do so. 374 West Moberly at para 110. 375 id at para 111. \t \u00C2\u00A0\t \u00C2\u00A0 116\t \u00C2\u00A0put in place a plan for the protection and rehabilitation of the BPCH.376 The focus on and attempts to remedy events in the past is contrary to Rio Tinto.377 The order to rehabilitate or augment the BPCH is a remedy for prior events which have no causal connection to any adverse impacts that the amended permits might yield.378 Regarding the requirement for a causal relationship between the government\u00E2\u0080\u0099s decision and the risk of an adverse impact, Finch CJ for the majority held Rio Tinto was distinguishable on its facts.379 Whereas in Rio Tinto there was a finding that the sale of excess power pursuant to the 2007 energy purchase agreement would have no adverse effect on the Nechako River and its fishery,380 in this case there was a link between the adverse impacts under review and past wrongs. That is, Finch CJ distinguished Rio Tinto based on the conduct contemplated in the permits at issue having an adverse impact on the defined treaty rights. He held: I do not understand Rio Tinto to be authority for saying that when the \u00E2\u0080\u009Ccurrent decision under consideration\u00E2\u0080\u009D will have an adverse impact on a First Nations right, as in this case, that what has gone on before is irrelevant. Here, the exploration and sampling projects will have an adverse impact on the petitioners\u00E2\u0080\u0099 treaty right, and the historical context is essential to a proper understanding of the seriousness of the potential impacts on the petitioners\u00E2\u0080\u0099 treaty right to hunt.381 Further, with respect to the rights the subject of adverse impact, he found: The amended permits authorized activity in an area of fragile caribou habitat. Caribou have been an important part of the petitioners\u00E2\u0080\u0099 ancestors way of life and cultural identity, and the petitioners\u00E2\u0080\u0099 people would like to preserve them. There remain only 11 animals in the BPCH, but the experts consider there to be at least the possibility of the herd\u00E2\u0080\u0099s restoration and rehabilitation.382 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0376 id at para 112. 377 Namely, Rio Tinto at para 45 to 54. See West Moberly at para 113. 378 id at para 113. 379 id at para 116. 380 ibid. 381 id at para 117. Emphasis added. 382 id at para 118. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 117\t \u00C2\u00A0To take those matters into consideration as within the scope of the duty to consult, is not to attempt the redress of past wrongs. Rather it is simply to recognize an existing state of affairs, and to address the consequences of what may result from pursuit of the exploration programs.383 Quite apart from Finch CJ\u00E2\u0080\u0099s finding in relation to the content of the duty, he explicitly upheld the role of Caribou in the way of life and cultural identity of the West Moberly First Nation. This finding respects the value in the community of hunting caribou. Arguably it also upholds what I have earlier speculated, as to Caribou having a role as part of the institutional social fabric and in the legal order of the Dunne Za, albeit that with this role being indecipherable, I was unable to determine its particulars.384 Such recognition is notable, and contrasts with the dissenting judgment and its neglect of such detail. Future impacts With respect to the second, \u00E2\u0080\u009Cfuture impacts\u00E2\u0080\u009D arm of the submission, FCC argued the scope of the duty to consult must exclude consideration of whatever effects a full mining operation might have.385 Specifically, FCC contended the chambers judge erred in holding that the duty to consult included an obligation to consider the potential adverse impacts of a full mining operation that might follow the exploration programs.386 FCC drew attention to the following pieces of evidence as attesting this incorrect scope. First, the \u00E2\u0080\u009Clonger term implications\u00E2\u0080\u00A6 [of mining] over this entire area\u00E2\u0080\u009D are referred to in Dr Seip\u00E2\u0080\u0099s comments of 25 September 2008 and in the petitioner\u00E2\u0080\u0099s response to a letter from MEMPR of 8 August 2009, in which the Ministry said, \u00E2\u0080\u009Cfurther stages of \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0383 id at para 119. 384 In Chapter 3 at 3.3, from the extracts of oral histories in Goddard\u00E2\u0080\u0099s account and the words of deponents, particularly that of Dr Aasan, I speculate that Caribou have a role in the order and governance of the Dunne Za and are part of the institutional social fabric. They are active agents in the world order as distinct from merely being passive objects to be hunted. 385 West Moberly at para 121. 386 id at para 114. \t \u00C2\u00A0\t \u00C2\u00A0 118\t \u00C2\u00A0development would not be considered in the permit amendment decisions.\u00E2\u0080\u009D387 Secondly, in his analysis, the Chambers Judge referred again to the reports of Dr Seip and Pierre Johnstone in which Dr Seip expressed a view that the bulk sampling and exploration programs would cause habitat destruction \u00E2\u0080\u009Cincompatible with efforts to recover the populations\u00E2\u0080\u009D and Pierre Johnstone is quoted as saying, \u00E2\u0080\u009Cmine development\u00E2\u0080\u009D in the habitat area would be inconsistent with maintaining or increasing the number of caribou.388 The Court held it was correct that consultation must be directed at the bulk sampling and advanced exploration permits and their impact, but, that the result of this consultation will necessarily determine not only what constitutes reasonable accommodation for the exploration permits, but will also affect subsequent events if the exploration proceeds.389 It found it was appropriate to consider future impacts for three reasons. First, in order to respond to the petitioners\u00E2\u0080\u0099 submission. The Court observed that \u00E2\u0080\u009Cthe whole thrust of the petitioners\u00E2\u0080\u0099 position was forward looking. It sought to preserve not only those few animals remaining in the BPCH, but to augment and restore the herd to a condition in which it might once again be hunted. If that position were to be given meaningful consideration in the consultation process,\u00E2\u0080\u009D one could not ignore at least the possibility of a full mining operation. Secondly, the Court correctly identified that pragmatically a full mining operation \u00E2\u0080\u009Cwas the whole object of the bulk sampling and Advanced Exploration Programs.\u00E2\u0080\u009D390 Thirdly, the Court noted the appellants did not provide any evidence to refute the view of the government\u00E2\u0080\u0099s own expert, Dr Seip, that \u00E2\u0080\u009Cit is short sighted and misleading to evaluate this proposal for bulk sampling without also considering the longer term consequences of more \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0387 ibid. 388 id at para 115. 389 id at para 122. 390 id at para 123. \t \u00C2\u00A0\t \u00C2\u00A0 119\t \u00C2\u00A0widespread mining activity occurring over the entire property.\u00E2\u0080\u009D391 The Court concluded from these three reasons that the trial judge committed no error in considering future impacts beyond the immediate consequences of the exploration permits as coming within the scope of the duty to consult. Further, to the extent that the MEMPR failed to consider the impact of a full mining operation in the area of concern, it failed to provide meaningful consultation.392 The label \u00E2\u0080\u009Cfuture impacts\u00E2\u0080\u009D coupled with the word \u00E2\u0080\u009Cmight\u00E2\u0080\u009D in the FCC submission, suggests a remote likelihood of this occurring. This is misleading. Consistent with Finch CJ\u00E2\u0080\u0099s reasoning, it is better to frame these as intended impacts given that they are not only possible, but are almost certain to occur if the antecedents to enabling this are achieved. That is, if FCC was to attain these exploration permits and bulk sampling proved viable. To this extent, one might term the impugned decisions, \u00E2\u0080\u009Cgateway decisions\u00E2\u0080\u009D given that their attainment unlocks the door to future exploration. In addition, Finch CJ held that in order for consultation to have been reasonable, the Crown would have had to explain to West Moberly that their position, namely that permits should be rejected and the project relocated away from the caribou habitat, had been \u00E2\u0080\u009Cfully considered\u00E2\u0080\u009D and that there were \u00E2\u0080\u009Cpersuasive reasons why West Moberly\u00E2\u0080\u0099s suggestions were unnecessary, impractical or otherwise unreasonable.393 Consultation could not have been meaningful without a \u00E2\u0080\u009Creasoned basis\u00E2\u0080\u009D for rejecting West Moberly\u00E2\u0080\u0099s position.394 The Court found that the starting point for the Crown was that the exploration programs should proceed and the CMMP and other measures were simply \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0391 id at para 124. 392 id at para 125. 393 id at para 144. 394 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 120\t \u00C2\u00A0proposed to minimize or mitigate adverse effects, without considering that the petitioners\u00E2\u0080\u0099 position of not allowing the exploration to occur might be preferred.395 The Chief Judge found this approach to be inconsistent with West Moberly First Nation\u00E2\u0080\u0099s Treaty 8 rights, noting that the concept of mining at the time of the treaty-making did not include the possibility of destruction to an important habitat that a modern mining operation would cause.396 I note that this finding did not derive from the petitioners\u00E2\u0080\u0099 submissions. I speculate, though am not certain, that the fact of Finch CJ having exceeded the petitioners\u00E2\u0080\u0099 submissions is indicative of the degree of respect he had towards the petitioners\u00E2\u0080\u0099 rights. I surmise that he supported these rights which included the Indigenous law of the right to hunt pursuant to the traditional seasonal round, to the extent of making findings that exceeded their submissions. The dissent Garson JA presented two reasons for her dissenting view. First, she held that it was wrong to consider possible, hypothetical scenarios that are not the subject of the present application. Garson JA was persuaded by FCC\u00E2\u0080\u0099s submission that \u00E2\u0080\u009Cbefore a permit is granted for an operational mine, there will be a full environmental review.\u00E2\u0080\u009D397 And that \u00E2\u0080\u009Cthe decision makers were mandated to consider three very limited permit applications, one of which actually reduced the impact of FCC\u00E2\u0080\u0099s activities.\u00E2\u0080\u009D398 In addition, she adopted Ministry evidence that sustained her position, including that of Hans Anderssen of 8 August 2009, which stated, \u00E2\u0080\u009Conly if the exploration stage is successful in delineating an economic resource that a decision is made by a company to proceed to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0395 id at para 149. 396 id at para 150. 397 id at para 228. 398 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 121\t \u00C2\u00A0a Mines Act mine application and an Environmental Assessment if the project exceeds a certain threshold. MEMPR is committed to consulting with the West Moberly First Nation should that occur and accommodate where appropriate.\u00E2\u0080\u009D399 Similarly, the MEMPR\u00E2\u0080\u0099s \u00E2\u0080\u009CConsiderations to Date\u00E2\u0080\u009D of 20 July 2009 decreed that \u00E2\u0080\u009Cany proposal to move towards an operating mine by FCC will be subject to further assessment and review through the Environmental Assessment process.\u00E2\u0080\u009D And, \u00E2\u0080\u009Cimpacts... [are] measured on the merits and impacts of the proposed activity alone and not potential future activities of greater impact.\u00E2\u0080\u009D400 Garson JA held, \u00E2\u0080\u009Cconsideration of the impact of a possible full scale mining operation on the herd, would be the subject of a full environmental review, and was beyond the scope of these decision makers\u00E2\u0080\u0099 mandates.\u00E2\u0080\u009D401 She reasoned thus: practically speaking, the decision makers did not have an application for a full mining operation before them. It was certainly possible that the nature of the project would change, and it was not wrong for the decision makers to limit their inquiry to the adverse effects of the permits under review and to decline to consider possible future scenarios on a hypothetical basis.402 The italicized language conjures a false sense of remoteness of the event of a full mining operation coming into fruition. This is false because mindful of the intention motivating the application, a full mining operation was intended to proceed. As Finch CJ identified, the whole purpose was to examine the viability of commercially exploiting coal within the tenure. Thus, it was not some remote possibility. Rather, if FCC was able to surmount the antecedent threshold of gaining approval for the exploration permits and if sampling proved viable, it was highly likely to occur. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0399 id at para 230. 400 id at para 232. Emphasis added. 401 id at para 239. 402 id at para 240. \t \u00C2\u00A0\t \u00C2\u00A0 122\t \u00C2\u00A0In addition to this, the reassurance of the project being subject to a full Environmental Assessment (EA) evident in the \u00E2\u0080\u009CConsiderations to Date\u00E2\u0080\u009D and in Garson JA\u00E2\u0080\u0099s findings, is inaccurate, as triggering the requirement for provincial environmental assessment under the British Columbia Environmental Assessment Act (BCEA), requires a project to exceed a certain size, indicated in the Reviewable Project Regulations or to be designated as a reviewable project by order of the Minister or the Executive Director.403 In fact, the amended project the subject of the judicial review proceedings did not trigger a BCEA assessment. Accordingly, while it might have undergone a Mines Act assessment, it would not have been subject to the relative rigour of an EA. I suggest that in having sanctioned the tendency on the part of the Ministry to defer consultation, and having omitted any mention of the significance of the role of Caribou in the way of life of the petitioners, as punctuates Finch CJ\u00E2\u0080\u0099s reasoning, that Garson JA is not respecting the petitioners\u00E2\u0080\u0099 Indigenous legal traditions. The petitioners\u00E2\u0080\u0099 concerns are not recognized as including Indigenous law that must be addressed together with applicable Canadian law, rather than being deferred for later consideration with other interests. Garson JA\u00E2\u0080\u0099s second reason for dissenting on this issue resulted from her interpreting the petitioners\u00E2\u0080\u0099 submission that the Rio Tinto need to show a new adverse impact is met, such that a new adverse impact did not exist. Garson JA expressed the petitioners\u00E2\u0080\u0099 submission as follows: \u00E2\u0080\u009Cthe cumulative impacts of development in West Moberly First Nation\u00E2\u0080\u0099s treaty protected hunting areas have resulted in fragmentation and decimation of the BPCH.\u00E2\u0080\u009D404 \u00E2\u0080\u009CThe present state of the herd was a proper consideration for the decision makers.\u00E2\u0080\u009D405 \u00E2\u0080\u009CThe permits are part of an incremental process that has resulted in the present, threatened state of the herd, and that \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0403 Sections 6 and 7, Environmental Assessment Act. 404 West Moberly at para 229. 405 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 123\t \u00C2\u00A0incremental context was something the statutory decision makers were obliged to consider.\u00E2\u0080\u009D406 The grant of permits \u00E2\u0080\u009Cmight be the tipping point in terms of the life of the herd.\u00E2\u0080\u009D407 The \u00E2\u0080\u009Cpossible extirpation of the herd is a new adverse impact which expands the scope of the duty to consult.\u00E2\u0080\u009D408 In response, Garson JA creatively interpreted the petitioners\u00E2\u0080\u0099 submissions inferring a contention that was not formally submitted in order to make Rio Tinto apply and thereby refute their claim. She held: \u00E2\u0080\u009CRio Tinto is applicable for the more general proposition that there must be a causative relationship between the proposed government conduct and the alleged threat to the species from the conduct.\u00E2\u0080\u009D409 West Moberly First Nation submitted, \u00E2\u0080\u009Cthis is not a \u00E2\u0080\u009Ctaking up\u00E2\u0080\u009D case, because the land had already been taken up for mining purposes.\u00E2\u0080\u009D410 That is, \u00E2\u0080\u009Cthe taking up occurred when the original permits were granted in 2005.\u00E2\u0080\u009D411 \u00E2\u0080\u009CThis statement belies the contention that the statutory decision makers ought to have taken into account the fact that earlier Crown authorized activity had at least in part, caused the present decimated state of the BPCH, thus the need for an augmentation \u00E2\u0080\u00A6plan to restore the health of the herd. The need for recovery arose from past development and thus would not be a consequence of the permits under consideration.\u00E2\u0080\u009D412 \u00E2\u0080\u009CThe decision makers drew the line at implementing a recovery plan because the need for recovery \u00E2\u0080\u00A6was not causally related to, the permits sought.\u00E2\u0080\u009D413 From one perspective, having inferred a contention that was not submitted, it is arguable that Garson JA was going out of her way to dismiss the petitioners\u00E2\u0080\u0099 submission. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0406 ibid. 407 ibid. 408 ibid. Emphasis in original. 409 id at para 237. Emphasis added. 410 id at para 238. 411 ibid. 412 ibid . 413 id at para 239. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 124\t \u00C2\u00A04.3.5 The interpretation issue: the nature of the treaty right to hunt Finch CJ held that Williamson J did not err in considering the specific location and species of the West Moberly First Nation\u00E2\u0080\u0099s hunting practices. He found that the trial judge had not interpreted the Treaty 8 right to hunt as a species-specific right but rather as a right to hunt caribou. As noted above, the province disputed the precision with respect to species and geographical scope with which Williamson J defined the treaty right. It maintained due consideration was given to the treaty right to hunt in the consultation process. The Court cited the following principles and factors that govern the interpretation of treaty rights.414 First, the nature and scope of the right to hunt must be understood as the petitioners\u00E2\u0080\u0099 ancestors and the Crown\u00E2\u0080\u0099s treaty makers would have understood that right when the treaty was made or adhered to. We must derive this understanding from the language of the treaty informed by the report of the Commissioners who negotiated it. Secondly, in examining the ambit of the right to hunt, we must remember that it is not merely an asserted and unproven right but is an existing right agreed to by the Crown and recorded in a Treaty. Thirdly, consultation must begin from the premise that the First Nations are entitled to what they have been granted by the Treaty.415 With respect to Treaty 8 specifically, the Court noted the Treaty grants the Crown\u00E2\u0080\u0099s representations that the same means of earning a livelihood would continue after the Treaty as existed before it, and the Indians would be expected to continue to make use of them. Secondly, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0414 id at para 128. 415 id at para 129. \t \u00C2\u00A0\t \u00C2\u00A0 125\t \u00C2\u00A0that the Indians would be as free to hunt after the treaty as if they had not entered into it. Thirdly, that the treaty would not lead to \u00E2\u0080\u009Cforced interference with their mode of life.\u00E2\u0080\u009D416 Moreover, the Court affirmed that the general principles of treaty interpretation enunciated in R. v. Badger, [1996] 1 S.C.R. 77 apply.417 First, treaties relating to Indigenous people should be construed liberally. Secondly, that \u00E2\u0080\u009Cany uncertainties\u00E2\u0080\u00A6 should be resolved in favour of the Indians.\u00E2\u0080\u009D Thirdly, that the \u00E2\u0080\u009Cwords of the treaty must not be interpreted in their strict technical sense nor subjected to rigid, modern rules of construction.\u00E2\u0080\u009D418 Applying these points, the court declared the following: \u00E2\u0080\u009CBritish Columbia relies on the words of the Treaty that limit the right to pursue hunting et cetera \u00E2\u0080\u0098saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.\u00E2\u0080\u0099\u00E2\u0080\u009D419 \u00E2\u0080\u009CTaking up\u00E2\u0080\u009D and \u00E2\u0080\u009Cmining\u00E2\u0080\u009D must be understood as the treaty makers would have understood these terms.420 Secondly, after citing an extract from Badger,421 it held \u00E2\u0080\u009C\u00E2\u0080\u0098some white prospectors [who] might stake claims\u00E2\u0080\u0099 to the understanding of those making the Treaty, would have been prospectors using pack animals and working with hand tools. That understanding of mining bears no resemblance whatever to the Exploration and bulk sampling projects at issue here, involving as they do road building, excavations, tunneling, and the use of large vehicles, equipment and structures.\u00E2\u0080\u009D422 Thirdly, it reiterated from Mikisew Cree First Nation v. Canada \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0416 id at para 150. 417 Badger at para 52, cited in West Moberly at para 132. Emphasis added. 418 ibid. Emphasis added. 419 West Moberly at para 133. 420 id at para 134. 421 At para 59, which itself cited from Ren\u00C3\u00A9 Fumoleau, As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939 (Toronto: McClelland and Stewart, 1973) the following: \u00E2\u0080\u009CWe are just making peace between whites and Indians for them to treat each other well. And we do not want to change your hunting. If Whites should prospect, stake claims, that will not harm anyone.\u00E2\u0080\u009D 422 West Moberly at para 135. \t \u00C2\u00A0\t \u00C2\u00A0 126\t \u00C2\u00A0(Minister of Canadian Heritage), [2005] 3 S.C.R. 388 (Mikisew), \u00E2\u0080\u009CBadger recorded that a large element of the Treaty 8 negotiations were the assurances of continuity in traditional patterns of economic activity. Continuity respects traditional patterns of activity and occupation. The Crown promised that the Indians\u00E2\u0080\u0099 rights to hunt, fish and trap would continue \u00E2\u0080\u0098after the treaty as existed before it.\u00E2\u0080\u0099423 Further, it affirmed that the \u00E2\u0080\u0098meaningful right to hunt\u00E2\u0080\u0099 is not ascertained on a treaty-wide basis.\u00E2\u0080\u009D424 The Court found it was clear from these passages that while Treaty 8 does not enumerate specific species and locations of hunting, it guarantees a \u00E2\u0080\u009Ccontinuity in traditional patterns of economic activity\u00E2\u0080\u009D and respect for \u00E2\u0080\u009Ctraditional patterns of activity and occupation.\u00E2\u0080\u009D The focus of the analysis is on those traditional patterns.425 Ostensibly the Court found in the petitioners\u00E2\u0080\u0099 favour by means of applying well-established principles and factors that govern the interpretation of treaty rights. However, this is too simplistic an analysis of its reasoning. What does this mean legally? It is imperative to be mindful of what scholars such as Henderson explain as to the role of Indigenous legal traditions or, what he terms, First Nations jurisprudences, in treaties between the Crown and the Aboriginal peoples of Canada. Henderson provides: \u00E2\u0080\u009CFirst Nations jurisprudences inform Aboriginal and treaty rights in the Constitution of Canada, which establishes new constitutional rights discourses.\u00E2\u0080\u009D426 This sui generis approach is not based on common or civil law discourses of rights. Rather it is based on First \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0423 Mikisew at para 47, cited in West Moberly at para 136. 424 Mikisew at para 48, cited in West Moberly at para 136. 425 West Moberly at para 137. 426 S J Henderson, First nations Jurisprudence and Aboriginal Rights: Defining the Just Society (Saskatoon: Native Law Centre, University of Saskatchewan, 2006) at 120. \t \u00C2\u00A0\t \u00C2\u00A0 127\t \u00C2\u00A0Nations knowledge and heritage.\u00E2\u0080\u009D427 As a union of Indigenous and Canadian law, treaties contain Indigenous legal traditions. As such, by acknowledging these \u00E2\u0080\u009Ctraditional patterns of activity and occupation,\u00E2\u0080\u009D which is a reference to the traditional seasonal round, Finch CJ explicitly acknowledges this Indigenous law which informs the content of the treaty right. As noted above, he recognizes and his decision making is influenced by, the value to the community of hunting Caribou. Further, by finding that \u00E2\u0080\u009C\u00E2\u0080\u0098some white prospectors [who] might stake claims\u00E2\u0080\u0099, to the understanding of those making the Treaty, would have been prospectors using pack animals and working with hand tools,\u00E2\u0080\u009D428and that \u00E2\u0080\u009Cthat understanding of mining bears no resemblance whatever to the Exploration and Bulk Sampling Projects at issue here, involving as they do road building, excavations, tunnelling, and the use of large vehicles, equipment and structures,\u00E2\u0080\u009D429 Finch CJ reiterates a finding which did not derive from a submitted contention. The Chief Justice exceeded the petitioners\u00E2\u0080\u0099 submissions to make a ruling favourable to the petitioners. The Court found an adverse effect on hunting rights from the proposed activity, which triggered the duty to consult, for the following reason: In this case it is clear that the petitioners have historically hunted caribou in the area affected by the Bulk Sampling and Advanced Exploration Programs. Since the 1970s West Moberly elders have imposed a ban on hunting caribou because of diminishing numbers, but it is hoped that hunting may resume in the future. It is also clear from the evidence of Pierre Johnstone and Dr. Seip that the Bulk Sampling and Advanced \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0427 ibid. 428 West Moberly at para 135. 429 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 128\t \u00C2\u00A0Exploration Programs as well as any full mining operation will have an adverse impact on caribou in the area and consequently the petitioners\u00E2\u0080\u0099 ability to hunt.430 I note that in contrast to the judgment of Williamson J, Finch CJ specifically acknowledged the moratorium of the West Moberly First Nation. The Court\u00E2\u0080\u0099s ultimate ruling on this issue was that the Chambers Judge did not err in considering the specific location and species of the petitioners\u00E2\u0080\u0099 hunting practices.431 Having explicitly acknowledged both the traditional seasonal round as well as the moratorium, Finch CJ\u00E2\u0080\u0099s finding on this issue constitutes strong recognition of the Indigenous legal traditions which were before him in evidence. His respect for these legal traditions and the influence they had in his reasoning, contrasts with the approach of the dissenting judge, which as I demonstrate, may be best characterized as a balancing act that neglects to acknowledge and is not attentive to, such traditions. The dissenting view Ambit of the treaty right? Picking up on the appellants\u00E2\u0080\u0099 submission,432 Garson JA cited several authorities dealing with both aboriginal and treaty rights \u00E2\u0080\u009Con the question of whether hunting, fishing and trapping rights pertain to a specific species.\u00E2\u0080\u009D These included R v Powley [2003] 2 SCR 207, a Metis rights case, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0430 id at para 139. Emphasis added. 431 id at para 140. 432 See West Moberly at para 6 and para 56 as to British Columbia\u00E2\u0080\u0099s submission that the treaty right is not species specific. \t \u00C2\u00A0\t \u00C2\u00A0 129\t \u00C2\u00A0where the right to hunt moose, a specific species, was not pleaded.433 In Powley, in response to provincial charges of unlawful hunting of game, the protagonist Ron Powley alleged an Aboriginal right to hunt for food434 as distinct from a right to hunt for a particular species. As such, this example is not apposite. Garson JA concluded from these authorities and the language of the treaty itself, that the treaty right is not a specific right to hunt the BPCH. Rather, that it affords protection to the activity of hunting.435 In addition to the choice of cases to substantiate her interpretation, Garson JA seems to take a literal interpretation of the text of the treaty, without also considering the accompanying promises of the treaty commissioners. We can infer this as she does not refer to these promises. Not only does such approach violate well-established principles of treaty interpretation, it also completely ignores the Indigenous law informing the content of the treaty right. The third support Garson JA employs to justify her interpretation of the treaty right as a global right to hunt, is the reasoning of the statutory decision makers for MEMPR and MOFR. She adopts this to conclude that \u00E2\u0080\u009Cthe right in question is a general right to hunt.\u00E2\u0080\u009D436 For example, she cites correspondence of Hans Anderssen of 8 August 2009, which she alleges, \u00E2\u0080\u009Cprovided a thorough explanation of the basis for his conclusion that the treaty right in question was not species specific.\u00E2\u0080\u009D437 Anderssen refers to the \u00E2\u0080\u009Cmeaningful right to hunt wildlife generally.\u00E2\u0080\u009D438 Similarly, she cites the Rationale for Approval of the Occupant Licences to Cut authored by Dale \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0433 id at para 215. 434 R v Powley [2003] 2 SCR 207 at para 6. 435 West Moberly at para 218. 436 West Moberly at para 222. 437 West Moberly at para 219. 438 id at para 219. \t \u00C2\u00A0\t \u00C2\u00A0 130\t \u00C2\u00A0Morgan of the MOFR, which describes the right to hunt as \u00E2\u0080\u009C\u00E2\u0080\u0098global\u00E2\u0080\u0099 in nature.\u00E2\u0080\u009D439 Garson JA concludes, \u00E2\u0080\u009Cthat bundle of rights includes the right to participate in various hunting activities and the right to hunt many species.\u00E2\u0080\u009D440 Further, that it was entirely appropriate for the statutory decision makers to take into account the abundance of other ungulates and the proportion of caribou territory impacted by the contemplated permits.\u00E2\u0080\u009D441 Finally, that the inclusion of rights to a particular species or herd within the right to hunt does not translate into an absolute guarantee to hunt that species or herd.\u00E2\u0080\u009D442 The omissions from Garson JA\u00E2\u0080\u0099s conclusion are telling. Garson JA ignores the petitioners\u00E2\u0080\u0099 practice of hunting caribou pursuant to the traditional seasonal round, and the importance of Caribou within the hierarchy of animals hunted within the seasonal round. In addition to what I have extracted in Chapter 3 above, submissions such as the following suggest these particulars of Dunne Za law: \u00E2\u0080\u009Cin the context of Treaty No. 8, the uncontested evidence on this application is that the harvesting of large ungulates according to the traditional seasonal round by West Moberly is the practice protected by the harvesting rights under Treaty No. 8. The harvesting of caribou is a critical aspect of the practice of the traditional seasonal round.\u00E2\u0080\u009D443 Similarly, \u00E2\u0080\u009Cnot all species have the same significance to West Moberly within its traditional harvesting practices.\u00E2\u0080\u009D444 \u00E2\u0080\u009CThe evidence shows that West Moberly has practiced a traditional seasonal round in which large ungulates, such as caribou, were of special importance.\u00E2\u0080\u009D445 Thirdly, caribou have enormous cultural significance to West Moberly and form an integral part of their mode of life and usual \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0439 id at para 220. 440 id at para 222. 441 ibid. 442 id at para 223. 443 id at para 12. Emphasis added. 444 id at para 69. Emphasis added. 445 id at para 77. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 131\t \u00C2\u00A0vocations as protected by Treaty No. 8.446\t \u00C2\u00A0Again, Garson JA\u00E2\u0080\u0099s approach and findings starkly contrast those of Finch CJ as to the characterisation of the treaty right, in particular, as to Caribou having a significant role in the culture and way of life of the petitioners and the value within the community of hunting Caribou.\t \u00C2\u00A0 Historical or modern Treaty interpretation Garson JA\u00E2\u0080\u0099s conclusion on this point was twofold. First, \u00E2\u0080\u009Cthe promises made under Treaty 8 must be interpreted within their historical context.\u00E2\u0080\u009D447 In addition, the degree to which \u00E2\u0080\u009Cgovernment action adversely impacts those promises\u00E2\u0080\u009D must be considered \u00E2\u0080\u009Cin light of modern realities.\u00E2\u0080\u009D448 She supports this \u00E2\u0080\u009Ccorrect interpretation of the treaty,\u00E2\u0080\u009D449 by declaring that \u00E2\u0080\u009Cthe manner in which the First Nations treaty rights are exercised is not frozen in time:\u00E2\u0080\u009D R. v. Van der Peet, [1996] 2 S.C.R. 507 at [132]. And further, that \u00E2\u0080\u009Can assessment of the degree to which government conduct impacts the exercise of those rights cannot ignore the modern day economic and cultural environment.\u00E2\u0080\u009D450 Garson JA adopted the interpretation of Treaty 8 enunciated in Mikisew. Namely that the rights it conferred with respect to land use were intended to be fluid and dynamic such that it provided a framework for the evolving interpretation of rights, rather than \u00E2\u0080\u009Ca finished land use blueprint.\u00E2\u0080\u009D451 She picks up on the language of change and the management of change that punctuates the SCC\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0446 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) at paras 1-2. 447 West Moberly at para 241. 448 ibid. Emphasis added. 449 id at para 246. 450 id at para 241. Emphasis added 451 Mikisew at para 27 cited in West Moberly at para 245. \t \u00C2\u00A0\t \u00C2\u00A0 132\t \u00C2\u00A0judgment in Mikisew.452 She notes while the Treaty guaranteed certain rights, it did not promise continuity of 19th century patterns of land use.453 Further, that none of the parties to the Treaty expected it to constitute a finished land use blueprint. Rather, Treaty 8 \u00E2\u0080\u009Csignalled the advancing dawn of a period of transition,\u00E2\u0080\u009D and provided for relations \u00E2\u0080\u009Cthat would govern future interaction\u00E2\u0080\u009D \u00E2\u0080\u009Cand thus prevent any trouble.\u00E2\u0080\u009D454 Applying these points Garson JA found that part of the task of the statutory decision makers was the actual balancing of these competing interests, informed by a correct understanding of the interpretation of the Treaty.455 She held, \u00E2\u0080\u009Cthe statutory decision makers were entitled to, and did, balance the competing interests in the context of a modern culture and environment.\u00E2\u0080\u009D456 \u00E2\u0080\u009CThis is a correct interpretation of the treaty in question. This interpretation informed the consultations and the statutory decision makers\u00E2\u0080\u0099 assessment of the adequacy of the consultation.\u00E2\u0080\u009D457 As I discuss further in the dissection of the issue to follow, Garson JA\u00E2\u0080\u0099s approach was very much a balancing exercise that in contrast to the approach of being attentive to and taking into account, the Indigenous legal traditions that were at play, seems to have been governed by \u00E2\u0080\u009Cthe modern day economic and cultural environment,\u00E2\u0080\u009D458 which undoubtedly, includes the economic imperatives of mining. Finch CJ also carried out a balancing exercise. However, whereas his \u00E2\u0080\u009Cequation\u00E2\u0080\u009D was \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0452 Such language includes: at para 50, \u00E2\u0080\u009CThe parties did in fact contemplate a difficult period of transition and sought to soften its impact as much as possible, and any administrative inconvenience incidental to managing the process was rejected as a defence in Haida Nation and Taku River;\u00E2\u0080\u009D at para 63, \u00E2\u0080\u009CHere, the most important contextual factor is that Treaty 8 provides a framework within which to manage the continuing changes in land use already foreseen in 1899 and expected, even now, to continue well into the future.\u00E2\u0080\u009D 453 Mikisew at para 27 cited in West Moberly at para 245. 454 ibid. Emphasis added. 455 West Moberly at para 246. 456 id at para 249. 457 ibid. 458 id at para 241. \t \u00C2\u00A0\t \u00C2\u00A0 133\t \u00C2\u00A0infused with appreciation for the Indigenous values and traditions that permeated the initial submission and submissions to the Supreme Court of British Columbia, and some of which defined the treaty right, Garson JA\u00E2\u0080\u0099s reasoning suggests that \u00E2\u0080\u009Cthe context of a modern culture and environment\u00E2\u0080\u009D459 was the determinative influence upon her findings. From this perspective, the modern day economic and cultural environment and all that this entails, seems to be mutually exclusive of Indigenous values. They were \u00E2\u0080\u009Ccompeting interests.\u00E2\u0080\u009D 4.3.6 The adequacy of consultation Finch CJ commenced his analysis by defining the standard for a reasonable process as \u00E2\u0080\u009Cone that recognizes and gives full consideration to the rights of Aboriginal peoples, and also recognizes and respects the rights and interests of the broader community.460 His first finding was that the petitioners\u00E2\u0080\u0099 position\u00E2\u0080\u0094that the permits should be rejected, the proposed activities relocated to an area where the habitat for the BPCH would not be affected, and that a plan ought be put in place for the recovery of the BPCH\u00E2\u0080\u0094was \u00E2\u0080\u009Ccompletely irreconcilable with the projects proposed by FCC.\u00E2\u0080\u009D461 Further, in relation to the law on the duty to consult, he held that to be considered reasonable, the consultation process \u00E2\u0080\u009Cwould have to provide an explanation to the petitioners that, not only had their position been fully considered, but that there were persuasive reasons why the course of action the petitioners proposed was either not necessary, was impractical, or was otherwise unreasonable. Without a reasoned basis for rejecting the petitioners\u00E2\u0080\u0099 position, there cannot be said \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0459 id at para 249. 460 id at para 141. Emphasis added. 461 id at para 144. \t \u00C2\u00A0\t \u00C2\u00A0 134\t \u00C2\u00A0to have been a meaningful consultation.\u00E2\u0080\u009D462 This appears to uphold the Mikisew requirement for the duty to consult having \u00E2\u0080\u009Cboth informational and response components.\u00E2\u0080\u009D463 In relation to whether this constitutes a development of the law on consultation, I do not think it does. The requirement for such an explanation is consistent with the procedural fairness requirement to give adequate reasons for a decision, which is affirmed in cases such as VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 FCR 25,\t \u00C2\u00A0 2000 CanLII 16275 (FCA). The Supreme Court of Canada in Beckman v. Little Salmon / Carmacks First Nation, 2010 SCC 53 (Beckman) affirmed that in discharging the Crown\u00E2\u0080\u0099s duty to provide meaningful consultation, \u00E2\u0080\u009Cregard may be had to the procedural safeguards of natural justice mandated by administrative law.\u00E2\u0080\u009D464 It went on to explain that \u00E2\u0080\u009Cthe relevant \u00E2\u0080\u009Cprocedural safeguards\u00E2\u0080\u009D mandated by administrative law include not only natural justice but the broader notion of procedural fairness.\u00E2\u0080\u009D465 As such, consistent with Beckman, Finch CJ\u00E2\u0080\u0099s finding here seems to affirm that procedural fairness considerations are also relevant to execution of the duty to consult. Applying this point, Finch CJ held that the MEMPR\u00E2\u0080\u0099s \u00E2\u0080\u009Creasons for its decision\u00E2\u0080\u009D contained in its documents, \u00E2\u0080\u009CConsiderations to date\u00E2\u0080\u009D of July 2009 and \u00E2\u0080\u009CRationale\u00E2\u0080\u009D of September 2009, did not meet this test. He held, \u00E2\u0080\u009CMEMPR effectively accepted FCC\u00E2\u0080\u0099s CMMP as a satisfactory response to the petitioners\u00E2\u0080\u0099 position. However, the CMMP does not explain why the petitioners\u00E2\u0080\u0099 position that the exploration permits should be cancelled, the activities relocated and the BPCH restored, was rejected.466 Rather, the CMMP proceeds on the footing that the bulk sampling and Advanced Exploration Programs should proceed, and then proposes measures to minimize or mitigate \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0462 ibid. 463 Mikisew at para 64 cited in West Moberly at para 145. 464 Beckman at para 46 citing from Haida at para 41. 465 Beckman at para 46. 466 West Moberly at para 146. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 135\t \u00C2\u00A0whatever adverse effects those programs will have. It contains proposals to monitor the impact of the projects on the BPCH and to \u00E2\u0080\u009Cdiscuss\u00E2\u0080\u009D ways in which FCC can assist in recovery of the caribou population.\u00E2\u0080\u009D467 Further, he held that the decision reached by MEMPR based on the CMMP and the position put forward by the petitioners were \u00E2\u0080\u009Cas two ships passing in the night. There was no real engagement of the petitioners\u00E2\u0080\u0099 position. It was not a position that could be dismissed out of hand, supported as it was by the expert opinions of the government\u00E2\u0080\u0099s own biologists, Dr Seip and Pierre Johnstone.\u00E2\u0080\u009D468 The majority finding indicates the degree of engagement that consultation should provide. It noted: If the petitioners\u00E2\u0080\u0099 position were to be addressed head on, and a careful consideration given to whether the exploration programs should be cancelled, FCC\u00E2\u0080\u0099s activities relocated, and the BPCH restored, it may be that MEMPR could give a persuasive explanation as to why such steps were unnecessary, impractical or otherwise unreasonable. The consultation process does not mandate success for the First Nations interest. It should, however, provide a satisfactory, reasoned explanation as to why their position was not accepted.469 However, according to the majority, the inverse occurred. \u00E2\u0080\u009CMEMPR never considered the possibility that the petitioners\u00E2\u0080\u0099 position might have to be preferred. It based its concept of consultation on the premise that the exploration projects should proceed and that some sort of mitigation plan would suffice.\u00E2\u0080\u009D470 Commencing consultation on that basis did not recognize the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0467 ibid. Emphasis added. 468 West Moberly at para 147. Emphasis added. 469 id at para 148. Emphases added. 470 id at para 149. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 136\t \u00C2\u00A0full range of possible outcomes, and amounted to nothing more than an opportunity for the First Nations \u00E2\u0080\u009Cto blow off steam.\u00E2\u0080\u009D471 In relation to the Ministry\u00E2\u0080\u0099s conception of the treaty right, the majority found that effectively the MEMPR regarded the petitioners\u00E2\u0080\u0099 Treaty 8 right to hunt as subject to, or inferior to, the Crown\u00E2\u0080\u0099s right to take up land for mining or other purposes,472 and that this was problematic for at least two reasons. First, it was \u00E2\u0080\u009Cinconsistent with what First Nations people were told when the Treaty was signed or adhered to. They were given to understand that they would be as free to make their livelihood by hunting and fishing after the Treaty as before, and that the Treaty would not lead to \u00E2\u0080\u009Cforced interference with their mode of life.\u00E2\u0080\u009D\u00E2\u0080\u009D473 Secondly, the MEMPR\u00E2\u0080\u0099s conception of the treaty right was problematic because \u00E2\u0080\u009Cthe concept of mining, as understood by the treaty makers would never have included the possibility that areas of important ungulate habitat would be destroyed by road building, excavations, trenching\u00E2\u0080\u00A6and the installation of the Addcar system.\u00E2\u0080\u009D474 Finch CJ concluded that a consultation that proceeds on a misunderstanding of the Treaty, or a mis-characterisation of the rights that the treaty protects, is a consultation based on an error of law, and cannot therefore be considered reasonable. The Chief Judge highlighted that his reasons for finding that consultation was not meaningful differed from those of Williamson J, stating that while the trial judge\u00E2\u0080\u0099s reasons were also correct, the underlying reason \u00E2\u0080\u009Cfor MEMPR\u00E2\u0080\u0099s slow and superficial response\u00E2\u0080\u009D and for lack of meaningful consultation, was the Crown\u00E2\u0080\u0099s \u00E2\u0080\u009Cfailure to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0471 ibid. 472 West Moberly at para 150. 473 ibid. 474 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 137\t \u00C2\u00A0understand or appreciate the basis of the petitioners\u00E2\u0080\u0099 objection, grounded in a constitutionally protected treaty right.\u00E2\u0080\u009D475 As I noted above in my evaluation of the MEMPR decision making,476 the miscomprehension of the treaty right on the part of MEMPR, achieved a lack of acknowledgment of the Indigenous law contained within the treaty right. MEMPR misunderstood the content of the treaty right, which included the traditional seasonal round. Entering into this process with this flawed comprehension infected the process at the outset. Finch CJ\u00E2\u0080\u0099s cognizance of this error and how it dismantled any chance at a reasonable consultation process, reinforces his strong respect for the Indigenous law informing the content of the treaty right. Dissent Garson JA agreed with Finch CJ that the adequacy of consultation is to be reviewed on a standard of reasonableness. At the outset, she cites Dunsmuir v. New Brunswick, 2008 SCC 9 as authority for this principle. Dunsmuir provides, \u00E2\u0080\u009Ca court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and the outcome.477 It is questionable whether, in evaluating the adequacy of the consultation process, Garson JA places equal emphasis on both process and outcome, because, as will be shown, she pays scant attention to the impact of her finding on the petitioners\u00E2\u0080\u0099 treaty protected rights. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0475 id at para 153. 476 See at page 103. 477 West Moberly at para 252. \t \u00C2\u00A0\t \u00C2\u00A0 138\t \u00C2\u00A0Garson JA evokes the principle of the honour of the Crown and cites from Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, the requirement \u00E2\u0080\u009Cthat the Crown must act honourably in accordance with its historical and future relationship with the Aboriginal peoples in question.\u00E2\u0080\u009D478 It is unclear what role the honour of the Crown plays in her reasoning, and whether she pays anything more than lip service to it. Early in her reasoning, it seems that the principles and variables guiding her analysis of the reasonableness of the decision making process are threefold: the honour of the Crown, reconciliation, and the degree of time expended on consultation. Dealing first with the role that the expenditure of time plays, Garson JA cites Binnie J\u00E2\u0080\u0099s comment in Beckman that \u00E2\u0080\u009Csomebody has to bring consultation to an end and weigh up the respective interests\u00E2\u0080\u009D479 Regardless of the fact that Taku concerned asserted rights whereas West Moberly concerned constitutionally protected treaty rights, Garson JA finds \u00E2\u0080\u009Cit helpful to compare the consultation in Taku to that in the case at bar.\u00E2\u0080\u009D480 She notes that the distinguishing feature of an asserted right was \u00E2\u0080\u009Cnot particularly important because the Aboriginal rights claim in Taku was relatively strong and the potential negative impact of the contemplated Crown conduct was significant.\u00E2\u0080\u009D481 The notion that an asserted Aboriginal right is analogous to an agreed and defined treaty right suggests at least something about the degree of respect Garson JA has for treaty rights. The failure to acknowledge that West Moberly\u00E2\u0080\u0099s was a treaty protected right and all that this entailed as a fusion of Indigenous and Canadian law, indicates Garson JA was ignoring or at least, not respecting the Indigenous law contained within this treaty right. Moreover, having affirmed \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0478 Taku at para 24. Cited in West Moberly at para 254. 479 Beckman at para 84. Cited in West Moberly at para 256. Emphasis added. 480 West Moberly at para 258. 481 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 139\t \u00C2\u00A0the MEMPR\u00E2\u0080\u0099s approach of weighing up the respective \u00E2\u0080\u009Cinterests,\u00E2\u0080\u009D Garson JA indicates that her approach to assessing reasonableness is a balancing act. This contrasts Finch CJ\u00E2\u0080\u0099s inclusive \u00E2\u0080\u009Cfull consideration of the rights of Aboriginal peoples\u00E2\u0080\u009D482 and simultaneous recognition of \u00E2\u0080\u009Cthe rights and interests of the broader community.\u00E2\u0080\u009D483 Garson JA provides details of what she perceives as several similarities between the consultation processes that occurred in Taku and by MEMPR respectively. These included: * The length of time consultation consumed: A 3.5 year environmental assessment process in Taku and 4 years expended on consultation in West Moberly. * The number of meetings between the project proponent and the First Nation: In Taku, the project sponsor met several times with the First Nation to discuss the project and its concerns regarding the project\u00E2\u0080\u0099s impact. In West Moberly, procedural aspects of the consultation were delegated to FCC, and Debra Stokes on behalf of FCC had several meetings with the West Moberly First Nation. * The engagement of consultants by the proponent to undertake expert studies: The proponent in Taku engaged an independent consultant to conduct archaeological and ethnographic studies. In West Moberly, FCC engaged a consultant to prepare the CMMP. * The adoption of mitigation strategies into the terms and conditions of certification: Both the environmental assessment certificate in Taku and the Mines Act permit in West Moberly, contained conditions mandating mitigation.484 * The opportunity for further input and accommodation at subsequent stages: In Taku it was held that project approval certification \u00E2\u0080\u009Cwas simply one stage in the process by which development \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0482 West Moberly at para 141. 483 ibid. 484 West Moberly at para 260. \t \u00C2\u00A0\t \u00C2\u00A0 140\t \u00C2\u00A0moves forward,\u00E2\u0080\u009D485 and weight was given to the fact of there being opportunity for First Nation input beyond the EA process. Similarly, Garson JA emphasizes that a rigorous environmental assessment with opportunities for further consultation by the West Moberly First Nation was to follow. Without peering too closely into the substance of these meetings, these events combined in her view to achieve sufficient numerical compliance to constitute adequate consultation. Based upon these perceived similarities, Garson JA concludes, \u00E2\u0080\u009Cthe consultation in the present case was comparable to that undertaken in Taku in all of the above mentioned respects.\u00E2\u0080\u009D486 Noticeably lacking is detail of the degree of engagement with impact on the treaty protected right. An observation of the government\u00E2\u0080\u0099s approach towards consultation which Garson JA upholds, is that the time expended in consultation is seen to be determinative of its adequacy, rather than the substance of what actually transpires in communications. For Garson JA, the fact that the duration and other features of the consultation process resembled that of Taku, which was found to be adequate, was highly influential to her determining that the process was adequate on a reasonableness standard. From her perspective, and also that of the government decision makers, a process totaling 4 years with at least 6 face-to-face meetings, is adequate. By contrast, the affidavit evidence of petitioner Willson on several occasions casts doubt on the effectiveness of communications between MEMPR and West Moberly First Nation. For example at the meeting of 5 August 2009, at which West Moberly First Nation expected substantive discussion of their initial submissions, Petitioner Willson deposed: \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0485 id at para 262. 486 id at para 260. \t \u00C2\u00A0\t \u00C2\u00A0 141\t \u00C2\u00A0MEMPR representatives at the meeting were not willing to have a meaningful conversation about West Moberly\u00E2\u0080\u0099s Treaty rights. I tried to explain that Treaty 8 protects our traditional mode of life, which includes hunting caribou. They simply said that West Moberly did not have a species-specific right to hunt caribou.487 The law governing reasonableness, Dunsmuir, asks for a consideration of both process and outcome in assessing reasonableness. A further observation from West Moberly\u00E2\u0080\u0099s dissenting judgment is that it is arguably not a question of the reviewer Garson JA having placed too much focus on process with insufficient attention to the decision\u00E2\u0080\u0099s outcome. Rather, one could observe that this judgment evidences the reviewer, in conformity with the statutory decision makers, having placed emphasis on numerical compliance as an indicator of the consultation\u00E2\u0080\u0099s adequacy, with arguably insufficient attention to the substance of the communications. Choice of standard of review Garson JA applied a lower standard of reasonableness for assessing the adequacy of consultation, than provided for in Beckman, reasoning that a historical treaty lacks \u00E2\u0080\u009Cthe degree of specificity necessary to ascertain the correct\" process.\u00E2\u0080\u009D488 She opined that a historic treaty, such as Treaty 8, is not a \u00E2\u0080\u009Cprecise document negotiated by sophisticated and well resourced parties.\u00E2\u0080\u009D489 Within her analysis of the reasonableness of consultation, Garson JA adopts a finding from Rio Tinto, that consultation \u00E2\u0080\u009Cis not a question of law, but a distinct constitutional process requiring powers to effect compromise and do whatever is necessary to achieve reconciliation of divergent \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0487 Willson, supra note 300 at paras 84 and 85. 488 West Moberly at para 196. 489 id at para 195. \t \u00C2\u00A0\t \u00C2\u00A0 142\t \u00C2\u00A0Crown and Aboriginal interests.\u00E2\u0080\u009D490 \u00E2\u0080\u009CCompromise is a difficult, if not impossible, thing to assess on a correctness standard.\u00E2\u0080\u009D491 Quite apart from the strict standard of review applicable, Garson JA\u00E2\u0080\u0099s reasoning suggests much about the attitude she has towards the role of the duty to consult in dispute resolution. Seemingly, it is primarily a task of effecting compromise. This task does not involve engaging with Indigenous law. Rather, it involves a balancing act of competing interests to achieve compromise. This resembles McLaughlin CJ\u00E2\u0080\u0099s approach in Taku.492 It is notable that, whereas Finch CJ\u00E2\u0080\u0099s judgment contains no such references to achieving compromise as the goal governing consultation, there are four references to compromise within Garson JA\u00E2\u0080\u0099s judgment. In summary, as to the extent of engagement with Indigenous law suggested by Garson JA\u00E2\u0080\u0099s findings, it seems that it is not a task of respecting Indigenous legal traditions, but rather, a balancing act to achieve compromise. Compromise contrasts Finch CJ\u00E2\u0080\u0099s inclusive approach. Moreover, it implies some \u00E2\u0080\u009Cinterests\u00E2\u0080\u009D are capable of being \u00E2\u0080\u009Cnegotiated out\u00E2\u0080\u009D in contrast to an inclusive approach which implies all are \u00E2\u0080\u009Cfactored in\u00E2\u0080\u009D to the decision making. In addition to the commonalities Garson JA identifies above, she elaborates at length on what she considers to be an extensive record of consultation apparent from the evidentiary record.493 In particular she notes: \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0490 Rio Tinto at para 74, cited in West Moberly at para 197. Emphasis added. 491 ibid. 492 See for example Taku at para 2, \u00E2\u0080\u009Ccompromise is inherent to the reconciliation process.\u00E2\u0080\u009D 493 West Moberly at para 263. \t \u00C2\u00A0\t \u00C2\u00A0 143\t \u00C2\u00A0\u00E2\u0080\u00A2 As the Chief Judge found, the Crown was entitled to delegate some of the procedural aspects of consultation to FCC. Debra Stokes, Director of Environment for FCC managed the consultation process on behalf of FCC. Since about January 2008, Ms Stokes had devoted a \u00E2\u0080\u009Csignificant amount of (her) time\u00E2\u0080\u009D to working with First Nations in connection with the consultation process related to these applications. She had consulted with all Treaty 8 First Nations. Of these, she identified four with an interest in consultation concerning FCC\u00E2\u0080\u0099s applications,494 two of which had entered into Memoranda of Understanding with FCC, which included economic opportunities for the First Nations. \u00E2\u0080\u00A2 In response to concerns regarding the impact on Caribou, FCC funded the purchase of radio collars to assist with their long term monitoring. \u00E2\u0080\u00A2 FCC retained an independent wildlife biologist to develop a plan to address concerns raised by the West Moberly First Nation over the potential impact of the project on Caribou. \u00E2\u0080\u00A2 FCC undertook the process of formulating the CMMP, which was subject to several revisions in response to comments from the West Moberly First Nation. \u00E2\u0080\u00A2 Mitigation required under the CMMP included, the establishment of a \u00E2\u0080\u009CBurnt Pine Caribou Task Force\u00E2\u0080\u009D in conjunction with local First Nations with reporting of results and suggestions to regulators. In addition, it required the immediate cessation of activities upon sight of Caribou.495 \u00E2\u0080\u00A2 FCC was involved in consultation with all stakeholders including West Moberly First Nation and the Crown.496 \u00E2\u0080\u00A2 Wildlife biologists were an integral part of all significant consultations. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0494 id at para 264. 495 id at para 267. 496 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 144\t \u00C2\u00A0\u00E2\u0080\u00A2 In October 2008, FCC committed to modifying the project to avoid the windswept areas so critical to the Caribou. The spine road reclamation plan was discussed at numerous meetings. The spine road had been built in an area that was windswept.497 I intervene at this point to note that Garson JA glosses over the fact that this was illegally cleared land.498 This omission paints the picture of a benevolent proponent doing all it can to avoid the most sensitive land. This is misleading. FCC illegally cleared this land and it is somewhat ludicrous to consider its rehabilitation as anything more than a restoration of the status quo. It should certainly not have been considered an accommodation. For what deterrence is achieved by the awarding of permits following illegal clearing? Returning to Garson JA\u00E2\u0080\u0099s extensive record of consultation, her account further provides: \u00E2\u0080\u00A2 The MEMPR Considerations of 20 July 2009, released one month after the West Moberly First Nation initial submissions entitled I Want To Eat Caribou Before I Die, inter alia, notes the Ministry had been engaged in consultations with the four affected Treaty 8 First Nations for over four years.499 Such engagement included six face-to-face consultation meetings which took place between September 2008 and July 2009. \u00E2\u0080\u00A2 The MEMPR Considerations attempts to quantify the adverse effects of FCC\u00E2\u0080\u0099s applications on Caribou generally and on West Moberly First Nation\u00E2\u0080\u0099s treaty right specifically. It notes there are 1599 Caribou within Treaty 8 Territory. The affected BPCH consists of 11 animals and represents 0.69% of the Caribou population in West Moberly First Nation\u00E2\u0080\u0099s traditional territory. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0497 ibid. 498 West Moberly at para 270. 499 id at para 273. \t \u00C2\u00A0\t \u00C2\u00A0 145\t \u00C2\u00A0Based upon this, it concludes, \u00E2\u0080\u009Cthe opportunity for West Moberly First Nation to hunt and trap Caribou in their traditional territory will not be significantly reduced.\u00E2\u0080\u009D500 Additionally, it notes the possible extirpation of the BPCH, relying on the comments of Mr Johnstone of MOE.501 \u00E2\u0080\u00A2 In response to the West Moberly First Nation\u00E2\u0080\u0099s request that the Crown engage in land use planning, the MEMPR Considerations states this request is met by the EBA to which West Moberly First Nation is a party and for which it had received extensive funding. MEMPR\u00E2\u0080\u0099s understanding was that the EBA provided a mechanism for addressing West Moberly First Nation\u00E2\u0080\u0099s concerns regarding cumulative impacts and efforts to recover caribou populations. Garson JA concludes her analysis by returning to a point with which she began, namely of time expended on consultation as being a consideration determinative of its reasonableness. She observes that after the final consultation meeting of 12 August, 2009: It was evident that by this time a decision had to be made. Dr Dale Seip had described the CMMP as doing \u00E2\u0080\u009Can excellent job of attempting to reduce the environmental impacts of the bulk sample and exploration program on Caribou\u00E2\u0080\u00A6 But he concluded that \u00E2\u0080\u009C\u00E2\u0080\u00A6if the government intended to conserve and rehabilitate this small caribou herd\u00E2\u0080\u009D granting permits was \u00E2\u0080\u009Cincompatible with efforts to recover the population.\u00E2\u0080\u009D The statutory decision makers were thus faced with two incompatible positions. After years of consultation in which the competing interests were fully explored, \u00E2\u0080\u009Csomebody [had] to bring consultation to an end and weigh up the respective interests: (Beckman at [84]). The statutory decision makers did just that. They made their decisions to approve the permits on the basis of the generality of the treaty right in question, limited impact of the proposed permits on that right and incorporation of accommodation and mitigation measures into the project.502 Based on the above noted \u00E2\u0080\u009Cextensive record of consultation,\u00E2\u0080\u009D Garson JA concludes, \u00E2\u0080\u009Cthe accommodation measures proposed by MEMPR were an adequate compromise which attempted to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0500 ibid. 501 id at para 274. 502 id at para 280. Emphases added. \t \u00C2\u00A0\t \u00C2\u00A0 146\t \u00C2\u00A0balance the competing interests of West Moberly First Nation, FCC and society at large.503 She concludes overall, \u00E2\u0080\u009Cthe consultation process was directly responsive to the concerns raised by West Moberly First Nation, insofar as those concerns related to the permits under consideration. In light of West Moberly First Nation\u00E2\u0080\u0099s treaty protected right and particular interest in hunting caribou, significant accommodations were made to protect the existing caribou herd.\u00E2\u0080\u009D504 To reiterate, it appears Garson JA misunderstood the significance of the traditional seasonal round to the treaty-protected right, and that it constitutes the substantive content of the treaty right. References to \u00E2\u0080\u009Cthe generality of the treaty right\u00E2\u0080\u009D505 and \u00E2\u0080\u009Cparticular interest in hunting Caribou,\u00E2\u0080\u009D506 suggest this. As noted, despite Garson JA having identified that attaining the standard of reasonableness requires consideration of both process and outcome, she neglects to examine in any detail the consequences of her finding on the petitioners\u00E2\u0080\u0099 rights. She merely appends to her finding, \u00E2\u0080\u009Cit is true that the outcome of the consultation process was not that which West Moberly First Nation desired. But it cannot be said that the outcome, given all the factors listed by the decision makers, was unreasonable.\u00E2\u0080\u009D507 Due to this discrepancy in emphasis, weighted towards process, her reasoning approach seems to parallel the submission of the Attorney General of Alberta that the focus should be on the reasonableness of the consultation process, rather than upon its outcome.508 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0503 id at para 284. Emphasis added. 504 id at para 286. Emphasis added. 505 id at para 280. 506 id at para 286. Emphasis added. 507 ibid. 508 id at para 71. \t \u00C2\u00A0\t \u00C2\u00A0 147\t \u00C2\u00A04.3.7 The accommodation issue The appellants challenged the augmentation order. They maintained Williamson J erred by holding that only one method of accommodation was reasonable in the circumstances, namely a plan to protect and augment the BPCH. British Columbia, supported by FCC submitted, \u00E2\u0080\u009Cthe predetermination of the only acceptable accommodation coloured the Judge\u00E2\u0080\u0099s consideration of whether the consultation was meaningful and reasonable.\u00E2\u0080\u009D509 The Judge\u00E2\u0080\u0099s focus on a single herd of caribou, as opposed to restoration of caribou generally, will result in the balkanisation of treaty rights or the \u00E2\u0080\u009Cmicro application\u00E2\u0080\u009D of the treaty right. This is not a remedy sought in the petition.510 The petitioners submitted the accommodation ordered was within the Judge\u00E2\u0080\u0099s discretion as delineated in the remedial powers within sections 5 and 6 of the Judicial Review Procedure Act (JRP Act).511 As to the validity of the augmentation order, Finch CJ held it was unnecessary to reach a final conclusion on whether Williamson J erred in declaring a specific form of accommodation.512 Instead, he set aside the augmentation order so as to permit the parties to resume consultation.513 Thus, he found that the proper remedy was to stay the implementation of the permits, set aside the accommodation and remit the matter for further consultation, having regard to the proper scope of the consultation set out in his reasons. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0509 id at para 158. 510 id at para 159. See also the submission of the Intervenor the Attorney General of Alberta discussed above at page 116. 511 id at para 161. 512 id at para 163. 513 id at para 165. \t \u00C2\u00A0\t \u00C2\u00A0 148\t \u00C2\u00A0So, the result of the majority\u00E2\u0080\u0099s judgment was that Finch CJ affirmed that the Crown failed to accommodate reasonably West Moberly First Nation\u00E2\u0080\u0099s hunting rights, and concluded the Trial Judge was correct in holding that the consultation process was not meaningful although for reasons that exceeded those provided by Williamson J. 514 In contrast, Garson JA briefly commented on the appropriateness, but not legal validity, of the augmentation order. In her view, the order was the product of Williamson J\u00E2\u0080\u0099s erroneous finding of a species specific right to hunt. She found that Williamson J\u00E2\u0080\u0099s error in characterizing the treaty right to hunt as a specific right to hunt the BPCH, rather than as a more general right to hunt,515 led him to conclude that the impact of the permits was significant and required more in the way of accommodation.516 4.4 Evolution in the degree of engagement? Comparison with a decision 26 years prior: Blueberry River v Canada (DIA) [1987] FCJ 1005 Having seen varying degrees of engagement with the Indigenous legal traditions of the Dunne Za by the successive decision makers in the relatively recent \u00E2\u0080\u009CCaribou cases,\u00E2\u0080\u009D it is useful to complete this analysis with a brief examination of a considerably earlier decision in which some of the same legal traditions appeared in evidence. I seek to be able to comment on the degree to which judicial decision making at least may be evolving to become more receptive towards engaging with and respecting Indigenous law, to the extent to which such limited data analysis permits.517 Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) 1987 FCJ 1005 concerned an action brought against the Department of Indian \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0514 id at para 164. 515 id at para 218. 516 id at para 223. 517 How robust, persuasive and credible can findings be that derive from such limited data, namely, two cases? \t \u00C2\u00A0\t \u00C2\u00A0 149\t \u00C2\u00A0Affairs (DIA) and the Director of the Veterans Lands Act, in relation to title to a former Indian Reserve, the Moberly Reserve and the mineral rights under that land. These had become at issue following certain transactions which took place in the twentieth century, chief of which was the disposal of Indian Reserve 172 (the land) to veterans and others, following the earlier surrender of the land (the 1945 surrender), and separate surrender of its mineral rights, by the band to the DIA, and DIA\u00E2\u0080\u0099s subsequent transfer of the land to the Director, Veterans Lands Act. Among other things, the plaintiffs claimed the DIA breached its fiduciary duty to the Band by fraudulently securing its consent to the 1945 surrender, and that the DIA was guilty of fraud and numerous breaches of fiduciary duty to the Band by its 1948 transfer of the land. At first instance, the plaintiffs lost by virtue of having breached the limitation period. The interpretation and legal effect of Treaty 8 and the 1940 surrender were at issue. The plaintiffs claimed that between 1916 and 1945, the defendant was guilty of several acts and omissions that constituted negligence and breach of fiduciary obligations towards them, and that by virtue of various acts and omissions, the defendant acted both in breach of its fiduciary relationship and fraudulently in securing and accepting the Band\u00E2\u0080\u0099s 1945 surrender. At first instance, Addy J of the Federal Court commenced his examination of the issues by declaring that an appreciation of the culture of the Dunne Za, their way of life, degree of sophistication as well as how the society was organized and functioned, is \u00E2\u0080\u009Cof some importance in determining many of the issues raised.\u00E2\u0080\u009D518 In his examination of the oral and written evidence presented by the Indian witnesses and expert witness Hugh Brody, Addy J comments instructively, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0518 Blueberry River v Canada (DIA) [1987] FCC 1005, directly following the heading \u00E2\u0080\u009CThe Dunne Za Cree Society.\u00E2\u0080\u009D Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 150\t \u00C2\u00A0\u00E2\u0080\u009Cthey also lacked to a great extent, the ability to plan or manage, with any degree of success, activities or undertakings other than fishing or hunting and trapping.\u00E2\u0080\u009D519 From this and other observations of Addy J, at its highest, a generous interpretation might be that he acknowledged the Dunne Za\u00E2\u0080\u0099s harvesting methods of hunting, fishing and trapping, involved careful planning and management. However, Addy J also observes, \u00E2\u0080\u009Cit seems that many of their decisions even regarding these activities, that is, hunting, could be better described as spontaneous or instinctive, rather than deliberately planned.\u00E2\u0080\u009D520 In contrast, as I have examined in Chapter 3 above, Brody discusses decision making by the Beaver Indians in some detail, as including consideration of many variables that epistemologically constitutes a very different approach and method to non-Dunne Za decision making, to the extent that Brody concedes its complexity would evade most non-Beaver. Further, I speculated that spontaneity was one such feature of the traditional seasonal round and of the Dunne Za hunting economy. Can we conclude that Addy J has failed to appreciate and respect the complexity of the Dunne Za decision-making process and all of the many variables and considerations involved? And failed to adequately try to comprehend this? Can we infer this without the benefit of the parties\u00E2\u0080\u0099 submissions and an extensive summary of the evidence? Unfortunately, I suggest that the Apsassin case is not so useful for this purpose. Although considerable oral evidence was tendered, Addy J addressed this evidence at the outset by declaring, an appreciation of the way of life, culture, degree of sophistication and societal function and organization, was \u00E2\u0080\u009Cof some importance\u00E2\u0080\u009D521 in determining the issues. Similarly, he declared it was not his \u00E2\u0080\u009Cintention to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0519 id, under the heading \u00E2\u0080\u009CThe Dunne Za Cree Society.\u00E2\u0080\u009D 520 ibid. Emphasis added. 521 id, directly following the heading \u00E2\u0080\u009CThe Dunne Za Cree Society\u00E2\u0080\u009D. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 151\t \u00C2\u00A0comment extensively on\u00E2\u0080\u009D the \u00E2\u0080\u009Cway of life, culture and other related matters,\u00E2\u0080\u009D522 and that that he merely touched \u00E2\u0080\u009Con some of the highlights.\u00E2\u0080\u009D523 I infer that Addy J only considered the evidence to a limited extent and that his was a relatively superficial analysis, as that is all he thought was warranted to address the issues at hand. I sought by means of the evaluation of the Apsassin case to be able comment on the degree to which judicial decision making may be evolving so as to be more receptive towards Indigenous legal traditions having a role as law in an adjudicator\u00E2\u0080\u0099s reasoning. For the reason just noted, namely, Addy J\u00E2\u0080\u0099s seemingly superficial engagement with the evidence, I am cautious about drawing wide reaching conclusions, such as, that the case is an illustration of the failure to embrace or even try to embrace, the Indigenous legal traditions that were in evidence. At the least however, I think it is fair to say that Addy J\u00E2\u0080\u0099s superficial engagement with the account of the way of life of the Dunne Za starkly contrasts Williamson J\u00E2\u0080\u0099s and Finch CJ\u00E2\u0080\u0099s meticulous attention and inquiring approach. 4.5 The extent of engagement with the Indigenous legal traditions of the Dunne Za Equipped with some understanding of the degree to which the petitioners\u00E2\u0080\u0099 legal traditions had a role in the successive decision makers\u00E2\u0080\u0099 reasoning in the Caribou cases as sources of legitimate legal authority, I can now present some form of comparative conclusion. I am mindful of the Dunne Za law I extracted and described in detail in Chapter 3, and also of the degree to which these legal traditions pervaded the submissions as law as distinct from constituting evidence. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0522 id, under the heading \u00E2\u0080\u009CThe Dunne Za Cree Society.\u00E2\u0080\u009D 523 ibid. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 152\t \u00C2\u00A0First, in relation to the traditional seasonal round, the majority upheld the trial judge\u00E2\u0080\u0099s finding that the treaty right was defined as a right to hunt according to the traditional seasonal round. This was determinative in that the MEMPR\u00E2\u0080\u0099s misunderstanding of the treaty right was central to the majority\u00E2\u0080\u0099s finding that the Province\u00E2\u0080\u0099s consultation was inadequate. Given that treaties contain Indigenous legal traditions, by acknowledging the Dunne Za\u00E2\u0080\u0099s \u00E2\u0080\u009Ctraditional patterns of activity and occupation,\u00E2\u0080\u009D524 Finch CJ explicitly acknowledged and respected the existence of, the Indigenous law that informs the content of the treaty right. He recognized and his decision making was influenced by, the value in the community of hunting Caribou. Having explicitly acknowledged both the seasonal round and the West Moberly First Nation\u00E2\u0080\u0099s moratorium, Finch CJ\u00E2\u0080\u0099s findings constitute strong recognition of the Indigenous legal traditions that were before him in evidence. His respect for these Indigenous laws, and the influence they had on his reasoning, contrasts with the reasoning approach of the MEMPR and also of Garson JA, whose approaches were heavily influenced by the \u00E2\u0080\u009Cmodern day economic and cultural environment.\u00E2\u0080\u009D525 In its consultation, the MEMPR could be critiqued for having breached the third criterion with which I am examining the successive decision making, for its failure to genuinely engage with the substance of the petitioners\u00E2\u0080\u0099 position,526 which was infused with impact on Dunne Za law. The MEMPR participated in a process that provided space for Indigenous law to potentially be articulated and considered by the statutory decision makers. And yet this consultation was in form only owing to its neglect of the substance of the petitioner\u00E2\u0080\u0099s position. The statutory decision maker \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0524 West Moberly at para 137. 525 id at para 241. 526 id at para 147. \t \u00C2\u00A0\t \u00C2\u00A0 153\t \u00C2\u00A0was neither sensitive nor attentive to the petitioners\u00E2\u0080\u0099 Indigenous law as having any role in its decision making process relating to the permit applications. Further, by means of its weighing of respective interests, which ignored the petitioners\u00E2\u0080\u0099 constitutionally protected hunting right and the fact that the petitioners\u00E2\u0080\u0099 interests were not merely interests equivalent to those of the proponent\u00E2\u0080\u0099s mineral tenure, the MEMPR did not acknowledge the seasonal round and hunting right as having the status and weight of law. Rather, the hunting right was an interest that was capable of being trumped by competing economic interests. The petitioners\u00E2\u0080\u0099 interests were also deemed capable of being deferred for later consideration, as distinct from including Indigenous law that must be addressed together with applicable Canadian law. In short, MEMPR\u00E2\u0080\u0099s decision making constituted a balancing act that ignored the petitioners\u00E2\u0080\u0099 Indigenous law. As to Garson JA\u00E2\u0080\u0099s interpretation of the treaty right, She took a literal interpretation devoid of the consideration of the accompanying oral promises made at the treaty\u00E2\u0080\u0099s inception. Her approach ignored the Indigenous law informing the content of the treaty right. In assessing the adequacy of the consultation process, Garson JA affirmed the approach of the statutory decision makers of balancing \u00E2\u0080\u009Cthe competing interests in the context of a modern culture and environment.\u00E2\u0080\u009D527 From Garson\u00E2\u0080\u0099s perspective, the petitioners\u00E2\u0080\u0099 \u00E2\u0080\u009Cparticular interest in hunting caribou,\u00E2\u0080\u009D528 was not an Indigenous law. Rather, it was given the status and weight of an interest that was capable of being balanced in equal fashion with other interests, such as FCC\u00E2\u0080\u0099s mineral tenure. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0527 id at para 249. 528 id at para 286. \t \u00C2\u00A0\t \u00C2\u00A0 154\t \u00C2\u00A0Garson JA\u00E2\u0080\u0099s approach to assessing reasonableness was very much a balancing exercise, which in contrast to the approach of taking into account the legal traditions that were at play as legitimate law, seems to have been governed by the \u00E2\u0080\u009Cmodern day economic and cultural environment,\u00E2\u0080\u009D529 which undoubtedly includes the economic imperatives of mining. The act of balancing per se is not problematic. All judges must balance. Finch CJ also carried out a balancing exercise. However, his equation was infused with appreciation of the Indigenous law that permeated the initial submission and some of which defined the treaty right. His balancing involved an inclusive full consideration of the rights of Aboriginal peoples and simultaneous recognition of the rights and interests of the broader community.530 In contrast, Garson JA\u00E2\u0080\u0099s reasoning suggests \u00E2\u0080\u009Cthe context of a modern day culture and environment\u00E2\u0080\u009D was the determinative influence on her findings. This context was mutually exclusive of Indigenous law. They were competing interests. The danger of this approach is that it suggests that Indigenous law does not have a modern presence and role to play in adjudication within Canada, a legally pluralist state. Prima facie, Garson JA could be critiqued for failing to examine the substance of communications made within consultation, and for merely confirming a process that potentially provided space for Indigenous law to be articulated and considered. In her review of the adequacy of MEMPR\u00E2\u0080\u0099s consultation, without examining the substance of consultation meetings et cetera, the consultation efforts exhibited sufficient parallels with those in Taku, to constitute reasonable consultation. However, as I discuss in the following chapter, Garson JA\u00E2\u0080\u0099s diligent application of the reasonableness standard prevented her from inquiring into the substance of these meetings. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0529 id at para 241. 530 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 155\t \u00C2\u00A0Beyond recognition of the existence of the seasonal round, the judgments revealed minor appreciation of its significance as a conservation regime and legal mechanism for maintaining balance and order. That is, as a deliberate and well thought out land use planning and management scheme. There was minimal discussion of the procedural and substantive components of the seasonal round. However, these features were largely not submitted as such either. In noting details such as that \u00E2\u0080\u009Chunters followed game\u00E2\u0080\u0099s seasonal migrations and re-distributions based on their knowledge and understanding of animal behaviour,\u00E2\u0080\u009D531 Finch CJ seemed to acknowledge the seasonal round as being an application of traditional knowledge and at least referred to some elements of traditional knowledge. However, the fact of Dunne Za decision making pursuant to the seasonal round being influenced by dreaming and the roles of medicine power and pre-existing relationships with the animal world, was absent from the decision makers\u00E2\u0080\u0099 reasoning. Secondly, as to the West Moberly First Nation\u00E2\u0080\u0099s moratorium on hunting Caribou, this was absent the reasoning of the statutory decision maker and the trial judge. The Chief Justice explicitly identified the moratorium and in doing so, recognized the value in the community of hunting Caribou. From one perspective, this Indigenous law made its way to the majority judgment to an extent.532 It was acknowledged as an attempt by the West Moberly First Nation as a means of preserving the Caribou population. As Finch CJ narrated, \u00E2\u0080\u009Csince about the 1970s, the West Moberly elders have imposed a ban on their people\u00E2\u0080\u0099s hunting of caribou.\u00E2\u0080\u009D533 Further, \u00E2\u0080\u009Cthe petitioners\u00E2\u0080\u0099 people have done what they could on their own to preserve the herd, by banning their people from hunting caribou for the last 40 years.\u00E2\u0080\u009D534 However, this is the extent of its recognition as an Indigenous law. From another perspective however, it is arguable that the majority decision \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0531 id at para 22. 532 See at para 26 and 118 of West Moberly. 533 West Moberly at para 26. 534 West Moberly at para 118. \t \u00C2\u00A0\t \u00C2\u00A0 156\t \u00C2\u00A0alone constitutes recognition of this law within the Indigenous community as the judicial review application was largely incited by the need to uphold the purpose of this law. The third Indigenous law I examined is to the principle of respect and its resulting practices, which is evident in the sustainable use of hunted animals, and I surmise, in the story of Tumaxale whose incongruous and murderous behaviour yields a denial of assistance from the animal world. This principle was arguably not submitted in any explicit way as a principle of Dunne Za law. However, it was contained within the initial submission, which formed part of the evidence. Moreover, the petitioners\u00E2\u0080\u0099 submissions to the Supreme Court of British Columbia also arguably alluded to the principle of respect. For example, they cite West Moberly member Catherine Dokkie as explaining the West Moberly\u00E2\u0080\u0099s unique connection with animals living in its traditional territory, as follows: Our people are closely connected to the land and the animals. We think of \u00E2\u0080\u009Cthe bush\u00E2\u0080\u009D as our playground\u00E2\u0080\u00A6 We have a special relationship with the animals. We protect them. We don\u00E2\u0080\u0099t just do this because we want to eat them. We see them like people. The moose, the grizzly, the caribou: they are all our friends. When a hunter kills an animal, they will often say a prayer or give an offering, because that animal gave up its life to feed us.\u00E2\u0080\u009D535 I am not sure to what degree this legal principle pervaded the decision makers\u00E2\u0080\u0099 findings and reasoning. For Williamson J, his dissatisfaction \u00E2\u0080\u009Cthat the Crown reasonably accommodated West Moberly\u00E2\u0080\u0099s concerns about their traditional seasonal round of hunting caribou for food, for cultural reasons, and for the manufacture of practical items,\u00E2\u0080\u009D536 suggests that he acknowledged some of the cultural reasons contained within the initial submission. I have speculated this could possibly encompass respect for the Caribou. However, this inference seems tenuous. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0535 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Catherine Dokkie at para 7. Emphases added. 536 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 75. \t \u00C2\u00A0\t \u00C2\u00A0 157\t \u00C2\u00A0More cogent seems to be Finch CJ\u00E2\u0080\u0099s narration of the factual background, as distinct from a finding, which provides: The Mountain Dunne-Za valued the existence of all species, including Caribou, and treated them and their habitat with respect\u00E2\u0080\u00A6 The people felt and feel a deep connection to the land and all its resources, a connection they describe as spiritual. They regarded the depopulation of the species they hunt as a serious threat to their culture, their identity and their way of life.537 The Chief Judge\u00E2\u0080\u0099s description seems to sustain Catherine Dokkie\u00E2\u0080\u0099s words as to the petitioners\u00E2\u0080\u0099 special relationship with and respect for animals, albeit that this account does not explicitly acknowledge this as being a principle of Indigenous law. Finally, I addressed the remaining legal principles contained within the oral histories. In relation to Caribou as active agents in the worldview and order of the Dunne Za, which I speculated but could not specifically identify within the oral histories, the initial submission extracts segments of several myths said to illustrate the significance and role of Caribou. In particular, it notes that Goddard documented Caribou in five stories that impart moral lessons, guide appropriate conduct and serve as spiritual teachings. Beyond the initial submission this law permeated the submissions to the Supreme Court of British Columbia by way of the evidence of Anthropologist Dr Wendy Aasen. Dr Aasen deposed, The importance of caribou to the Mountain Dunne-za is demonstrated by its role in worldview, myth, and spirituality. After a review of the literature, I conclude that in addition to entertainment value, caribou myths and stories taught and reinforced appropriate norms, beliefs and codes of conduct. Individual members of the Mountain Dunne-za actively sought caribou as a powerful spirit helper, whom, if respected in prescribed ways, was believed to aid a hunter throughout his life.538 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0537 id at para 25. 538 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Wendy Aasen Exhibit \u00E2\u0080\u009CB\u00E2\u0080\u009D at 29. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 158\t \u00C2\u00A0The notion of Caribou being active agents in the Dunne Za worldview and order, assuming a quasi governance role and separately, as being a powerful spirit helper that aided Dunne Za hunters, is noticeably absent Garson JA\u00E2\u0080\u0099s reasoning. Arguably traces of its recognition permeate Finch CJ\u00E2\u0080\u0099s reasoning. In his findings in relation to the scope of the duty to consult, Finch CJ explicitly acknowledged the importance of Caribou to the way of life and cultural identity of the West Moberly First Nation finding as such, \u00E2\u0080\u009CCaribou have been an important part of the petitioners\u00E2\u0080\u0099 ancestors way of life and cultural identity, and the petitioners\u00E2\u0080\u0099 people would like to preserve them.\u00E2\u0080\u009D539 Way of life and cultural identity could encompass the role of Caribou in the way of life of the West Moberly First Nation. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0539 West Moberly at para 118. \t \u00C2\u00A0\t \u00C2\u00A0 159\t \u00C2\u00A05. The extent to which decision makers are able to engage with Indigenous legal traditions In the previous chapter I examined the extent to which decision makers recognise, respect and consider Indigenous legal traditions. This chapter examines cultural, technical and operational impediments to this effort that I observed from critique of the administrative and judicial decision making in the Caribou cases. I commence by illustrating the complex issue of what has been termed \u00E2\u0080\u009Ccultural untranslatability,\u00E2\u0080\u009D540 as well as noting ramifications for decision makers of this issue. I use this term to encompass the ability and receptivity of western-trained adjudicators and decision makers to comprehend and accommodate multiple worldviews. I then examine intricacies of the legal ingredients at play in the operation of the duty to consult that impact the capacity of decision makers to consider Aboriginal concerns. In particular, I note concerns with the reasonableness standard as it is applied to the substantive legal question of the adequacy of consultation. Finally, I discuss pragmatic features of the operation of the duty to consult and the actors involved in its implementation that impede the ability of decision makers to take into account the genuine concerns of First Nations participants. 5.1 Cultural untranslatability: a clash of worldviews As I stated at the outset, I had conceived a larger project involving fieldwork to test the hypothesis that certain types of values are excluded by the governance regime of the duty to consult, namely, by the system within which these rights, interests and values are managed. Related within this broad inquiry, I sought to explore sub topics including \u00E2\u0080\u009Cthe language / discourse of communication and accommodating multiple worldviews: a cultural impasse?\u00E2\u0080\u009D My careful review \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0540\t \u00C2\u00A0Sophie Mc Call, First person Plural (Vancouver: UBC Press 2012) at 70.\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 160\t \u00C2\u00A0of the initial submission of the West Moberly First Nation,541 particularly examples such as the following, incited this interest: And that is something that we don\u00E2\u0080\u0099t get to talk about with the Province or Federal Government is our spiritualness, our connection with the land. It is one and the same\u00E2\u0080\u00A6our church is our land\u00E2\u0080\u00A6the animals and the connectivity of everything.542 Omissions from consultation discussions with Provincial government consultors, such as spiritual impact and also secondary psychological impacts, which are prominent in the initial submission, are notable. In addition, West Moberly Elders at the 2011 conference on working with Indigenous legal traditions sourced in oral histories, voiced similar frustration with the limits of the consultation process and the permissible scope of discussion. 543 These examples and a conversation I had with Chief Willson of the West Moberly First Nation,544 provoked several questions in my mind: are the consultors and consultees communicating \u00E2\u0080\u009Cwith the same language\u00E2\u0080\u009D such that effective communications are able to be achieved? That is, are they mutually intelligible? To be heard, one needs to be able to be received. Are the consultors sensitive to and accommodating the language and cultural intricacies of the Dunne Za consultees? Are they able to be accommodating of each other? Are cultural differences and an inability to respect these, an impediment to consultation \u00E2\u0080\u009Csuccess\u00E2\u0080\u009D? Is this an institutional problem? Do the consultors, such as the Aboriginal Relations Branch of the MEMPR have the capacity to hear these concerns? Do they lack the relevant experience? \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0541 See West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009). 542 id at 79. Emphasis added. 543 See note 67 in Chapter 1 for the details of this Conference. 544 Personal Communication, 1 October 2011. \t \u00C2\u00A0\t \u00C2\u00A0 161\t \u00C2\u00A0Ultimately I found myself pondering the point of consultation meetings if the parties were not understanding each other or lacked the will to achieve effective and meaningful communications. In seeming contrast, as to the question of the ability to be receptive to differing worldviews and ways of life, I was mindful of a specialist tribunal in New South Wales that possesses decision makers with specialized knowledge in for example, Aboriginal land rights and disputes involving Aboriginal peoples, amongst ecological, town planning and other qualifications and experience, such that decision makers are able to hear and comprehend concerns, at least better than a decision maker lacking this expertise.545 These general lines of inquiry, which could be subsumed within the headings \u00E2\u0080\u009Ccultural untranslatability,\u00E2\u0080\u009D546 \u00E2\u0080\u009Cintelligibility\u00E2\u0080\u009D and \u00E2\u0080\u009Creceptiveness,\u00E2\u0080\u009D are not new.547 Much was articulated to the same general effect in former British Columbia Court of Appeal Chief Justice Lance Finch\u00E2\u0080\u0099s call to the legal profession to pay attention to Indigenous legal traditions.548 However, I would go further than Finch CJ\u00E2\u0080\u0099s mandate and suggest that any duty to learn as the former Chief Justice \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0545 For example, Acting Commissioners Jeffrey Kildea and Megan Davis of the Land and Environment Court of NSW, who adjudicate, mediate and conciliate appeals, in addition to working in concert with Judges in cases where legal issues arise. See http://www.lec.lawlink.nsw.gov.au/lec/judicial_officers.html Accessed 10 May 2014. Such Commissioners are equipped to understand Aboriginal concerns at least as they form part of the evidence. By distinction, I am unaware of whether this extends to embracing Indigenous legal traditions. I am also unaware of the status of any movement towards legal pluralism in Australian jurisdictions. 546 See McCall, supra note 540 at 70. 547 The general line of inquiry of accommodating multiple worldviews is comparable with Irlbacher Fox\u00E2\u0080\u0099s work in a different geographical area and for differing purposes, which inter alia, explores government discourse that serves to sustain inequalities in the context of self government negotiations in the North West Territories. Stephanie Irlbacher-Fox, Finding Dashaa: Self-Government, Social Suffering, and Aboriginal Policy in Canada (Vancouver: UBC Press) 2009; Hugh Brody also explores these issues of \u00E2\u0080\u009Ccultural untranslatability\u00E2\u0080\u009D particularly in his narration of the consultation meetings that took place in relation to the Alaska Highway Pipeline. See Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at Chapter 15 \u00E2\u0080\u009CA Hearing.\u00E2\u0080\u009D 548 Finch CJ also discusses, amongst other things, the need to be receptive though in the context of seeking to incorporate Indigenous legal orders into the common law and not in relation to the duty to consult per se. See The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012). \t \u00C2\u00A0\t \u00C2\u00A0 162\t \u00C2\u00A0expresses the requirement, that is, to be or at least try to be receptive to another worldview, at least in the context of the duty to consult as distinct from the effort to establish Aboriginal rights, ought also extend to administrative decision makers. As to Finch CJ\u00E2\u0080\u0099s intended audience and those whom the duty binds, he draws attention to the \u00E2\u0080\u009Cpresent and future ability of individual judges, and lawyers, to approach this task in a principled and effective manner\u00E2\u0080\u009D549 and similarly, refers to the problem of \u00E2\u0080\u009Clawyers and judges in Canada being unfamiliar with Indigenous languages, cultures and worldviews.\u00E2\u0080\u009D550 He provides more expansively, \u00E2\u0080\u009Cbefore space can be made in the Canadian legal landscape for Indigenous law, the participants in the process judges, lawyers, and lawmakers, as well as academics\u00E2\u0080\u0094must be able to conceptualize and recognize what they are making space for, or the exercise will be futile.\u00E2\u0080\u009D551 As such, it appears that the objects of the calling are judges, lawyers, lawmakers and academics. However, in the context of the operation of the duty to consult, any duty to learn must target closer to the source of impugned decisions to the actual decision makers, as it is the administrative decision makers within government ministries for example, ministers and directors general, who, advised by policy officers, are making these decisions, as distinct from lawyers.552 These officials, such as those within various Aboriginal Relations branches of ministries, are critical participants in the process. Moreover, government members of Aboriginal Relations branches of ministries for example, are often the first point of contact with First Nations peoples in any consultations. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0 549 id at para 1. Emphasis added. 550 id at para 2. Emphasis added. 551 id at para 5. Emphasis added. 552 I note that within government Ministries, in house lawyers may advise on the legal validity and mechanics of achieving policy change, or as to the merits of a permit application for example. However, such lawyers are not the decision makers. Such decisions ultimately are made by ministers and delegated decision makers such as senior policy officers. \t \u00C2\u00A0\t \u00C2\u00A0 163\t \u00C2\u00A0Accordingly, it would make sense that such policy officers and government employees, including those \u00E2\u0080\u009Cwho reside within the bowels and recesses of government departments\u00E2\u0080\u009D553 also be duty bound. It is arguably too late in the process if the duty only applies at the phase of lawyers challenging administrative decisions, because, as will be seen in the following discussion of the standard upon which such decisions are reviewed, at that point, any decision need only be reasonable. As a consequence, any failure to \u00E2\u0080\u009Clearn\u00E2\u0080\u009D or to try to learn, in the sense of being receptive to cultural intricacies amongst other things, could well be gotten away with by virtue of the deference attributed to the administrative decision maker. How to enforce any such duty is of course a separate question. I have already documented key examples of where this clash of worldviews and need for receptiveness plays out. As I mentioned in Chapter three, when describing and analysing the traditional seasonal round and what might be characterized as its substantive components, several of its features acutely contrast contemporary land use planning regimes. To reiterate, I maintained that the following description elucidates the cultural impasse evident in the contrast between the traditional seasonal round and non Dunne Za means of using and managing the land: many white trappers found themselves repeatedly at odds with an altogether unfamiliar, even incomprehensible, way of harvesting the land\u00E2\u0080\u0099s resources\u00E2\u0080\u00A6White settlers and trappers had clear notions of orderly land use that were based on well tried patterns of frontier homesteading. They imagined that a trapping area they had claimed would be theirs alone, an area where they would have an exclusive right to harvest furs. The Indians system was based on freedom of access, flexible use and rotational conservation, which meant that some areas went un-trapped for seasons on end.554 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0553 Dunsmuir v. New Brunswick, 2008 SCC 9 at para 136. 554 Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at 87. \t \u00C2\u00A0\t \u00C2\u00A0 164\t \u00C2\u00A0Exclusive possession juxtaposes a sharing, collective approach that characterizes Dunne Za land use law. Moreover, the rigidity of the system of land management for regulating trapping that was imposed upon the Dunne Za\u00E2\u0080\u0099s legal systems, conflicts with the relative flexibility of the Dunne Za\u00E2\u0080\u0099s relationship with the land. Similarly, in relation to the procedural components of the seasonal round, I maintained that a further striking example of the divide separating Dunne Za and non-Dunne Za legal systems, is implicit in Brody\u00E2\u0080\u0099s description of the epistemological shift that is necessary to appreciate the legal system and way of life of the Beaver Indians. Brody provides: The way to understand this kind of decision making is also to live by and even share it, is to recognize that some of the most important variables are subtle, elusive, and extremely hard or impossible to assess with any finality. The Athapaskan hunter will move in a direction and at a time that are determined by a sense of weather (to indicate a variable that is easily grasped if all to easily oversimplified by the one word) and by a sense of rightness.555 Such decision making, specifically the \u00E2\u0080\u009Cprocess components\u00E2\u0080\u009D informing the operation of the traditional seasonal round, might likely confound decision makers for several reasons. For example, how might one comprehend such intangible variables as senses \u00E2\u0080\u009Cof weather and rightness,\u00E2\u0080\u009D and similarly, other variables which are \u00E2\u0080\u009Cimpossible to assess with finality?\u00E2\u0080\u009D556 Are these not vague and uncertain? Such intangible variables seem to defy the pursuit of achieving determinative considerations that is a feature of administrative decision-making.557 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0555 id at page 37. Emphases added. 556 ibid. 557 If the traditional seasonal round is comparable to a State implemented land use planning or management regime, such as the scheme for the prevention of broad scale land clearing under the Native Vegetation Act 2003 (NSW), with all of its prohibitions, offences and exceptions, the ground of review of decisions being void for uncertainty as an invalid exercise of power, by virtue of the decision being incapable of compliance, leaped out in my mind from the previous description, as being potentially applicable, As a former Government lawyer, this was a familiar concern with drafting and reviewing conditions of licences under the Protection of the Environment Operations Act (1997), and also remedial \t \u00C2\u00A0\t \u00C2\u00A0 165\t \u00C2\u00A0I suggested earlier that it is unlikely that a non-Dunne Za decision maker would ever review Dunne Za decision making, and that the vagueness of being guided by sense might be difficult for a non-Dunne Za person or adjudicator to appreciate. However, as I refer to below, non-Dunne Za decision makers have had to consider Dunne Za decision making, at least as it forms part of the evidentiary record. As an application of traditional knowledge, the traditional seasonal round would likely confound non-Dunne Za decision makers and risks its intricacies and multiple variables being misunderstood. Brody comments that Dunne Za map making, such as that featured in the initial submission, is potentially subject to the critique of being incompatible with the aims of scientific work: \u00E2\u0080\u009Cit will be said that this land use mapping is incompatible with the aims of scientific work, and at odds with the need for objective data.\u00E2\u0080\u009D558 Similarly, \u00E2\u0080\u009Cprotests against the hunting way of life have often paid hostile attention to its seemingly haphazard, irrational and improvident nature.\u00E2\u0080\u009D559 I suggest that both of the above described features could be caught by these criticisms and inaccurate characterisations. Intangible variables that are subtle and elusive, arguably vague and \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0directions as a regulatory response to land clearing in contravention of the Native Vegetation Act. That is, as a regulator, we could not draft conditions that were so vague that they were incapable of enforcement. This now rather old case also addresses this concern albeit in relation to a Council development consent: Levenstrath Community Association Inc v Tomies Timber & Anor [2000] NSWLEC 95. I have questioned the considerations informing Dunne Za decision making pursuant to the seasonal round for being vague and uncertain, governed by \u00E2\u0080\u009Csenses of rightness\u00E2\u0080\u009D which are incapable of assessment with finality, as distinct from a resulting decision, which triggers the void for uncertainty ground of judicial review. As such I am possibly referring to the incorrect ground of review. While I suspect that uncertainty is the incorrect ground of administrative law, what at least this example highlights, is the potential for Aboriginal decision making, not being entirely in alignment with Canadian administrative law principles. While I note he examines the different setting of Aboriginal self government, Sossin explores the general theme of the collision of Indigenous legal traditions and Canadian administrative law in some detail. See Lorne Sossin, Indigenous Self Government and the Future of Administrative Law\u00E2\u0080\u009D UBC Law Review (2012) 45(2) at 595.\t \u00C2\u00A0558 Brody, supra note 554 at 174. 559 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 166\t \u00C2\u00A0uncertain and \u00E2\u0080\u009Cimpossible to assess with finality,\u00E2\u0080\u009D560 could be seen to conflict with the alleged objectivity of scientific work. Similarly, failure to be attentive to the substantive and procedural components of the traditional seasonal round risks it being perceived as \u00E2\u0080\u009Cseemingly haphazard, irrational and improvident.\u00E2\u0080\u009D561 Recent academic critique of traditional knowledge confirms that Brody\u00E2\u0080\u0099s fears were entirely legitimate and potently illuminates the very real issue of cultural untranslatability. In multiple works, commencing in 1996 and most notably in her 2008 Disrobing the Aboriginal Industry: the deception behind Indigenous cultural preservation,562 Professor Frances Widdowson criticises inter alia, the incorporation of traditional knowledge into the environmental assessment process. In summary, Widdowson maintains that owing to its spiritual component and unscientific reasoning, traditional knowledge is a threat to the environmental assessment process wherever it is applied. Further, she suggests that the incorporation of traditional knowledge into public policy more generally yields incorrect assumptions since spiritual beliefs cannot be challenged or verified.563 Widdowson indicts the foundations of traditional knowledge as a seasoned litigator seeks to debunk an expert witness\u00E2\u0080\u0099s opinions by undermining the bases of his/her claims, or the witness\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0560 id at 37. 561 id at 35. 562 Frances Widdowson and Albert Howard, Disrobing the Aboriginal Industry: the deception behind Indigenous cultural preservation (Montreal: McGill Queens University Press 2008). This is in addition to the 2006 publication which I rely on for this chapter, Frances Widdowson and Albert Howard, \u00E2\u0080\u009CAboriginal \u00E2\u0080\u009CTraditional Knowledge\u00E2\u0080\u009D and Canadian Public Policy: Ten Years of Listening to the Silence\u00E2\u0080\u009D (Presentation for the Annual Meeting of the Canadian Political Science Association, delivered at York University, Toronto, Ontario June 1-3, 2006). 563 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 167\t \u00C2\u00A0methodology.564 Several pillars of her assault include, first, that traditional knowledge cannot make a contribution to scientific research because it lacks a methodology for determining the accuracy of observations.565 Further, that there is a need for more objective methods for selecting information to ensure that the data used is sufficiently consistent and precise. She prizes the scientific method and claims that science provides an appropriate methodology.566 Widdowson particularly indicts the spiritual source of traditional knowledge and questions its reliance upon spiritual beliefs. She claims, \u00E2\u0080\u009CAboriginal people use spiritual beliefs to explain natural phenomena. These assertions, based on unverifiable beliefs in the supernatural, have not been derived from any observations, no matter how unsystematic or vague.\u00E2\u0080\u009D567 How might Widdowson respond to the notion that animals which are sought to be hunted are located via dreaming, and antecedent relationships with animals, as part of the procedural components of the traditional seasonal round? Widdowson\u00E2\u0080\u0099s denigrates traditional knowledge to the extent of equating it with \u00E2\u0080\u009Cjunk science,\u00E2\u0080\u009D568 which results when conclusions are drawn from low quality data such as anecdotes, rather than from randomised, controlled clinical experiments.569 What place is there for oral histories within her permissible methodologies and sources of knowledge? Seemingly none. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0564 I owe this insight to working with Philip Clay SC on Ashbian Nominees Pty Ltd v Sydney City Council [2008] NSWLEC 1436. 565 Frances. Widdowson and Albert Howard, \u00E2\u0080\u009CAboriginal \u00E2\u0080\u009CTraditional Knowledge\u00E2\u0080\u009D and Canadian Public Policy: Ten Years of Listening to the Silence\u00E2\u0080\u009D (Presentation for the Annual Meeting of the Canadian Political Science Association, delivered at York University, Toronto, Ontario June 1-3, 2006). 566 ibid. 567 id at 7. Emphasis added. 568 id, at 13. 569 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 168\t \u00C2\u00A0Although Widdowson\u00E2\u0080\u0099s comments apply more generally to traditional knowledge per se, and not of the Dunne Za specifically, they have been published by a reputable publisher and have generated considerable academic discussion.570 There is a risk that her opinions could be used by interests antagonistic to those of Aboriginal claimants.571 Indeed, to demonstrate that critique and perspectives comparable to Widdowson\u00E2\u0080\u0099s are not without their threat to the veracity and legitimacy of traditional knowledge, I briefly re-consider a past example where a judge was required to consider traditional knowledge as part of the evidentiary record. I refer again to the Apsassin case of the late 1980s whose facts I have narrated above. In his examination of the oral and written evidence presented by the Aboriginal witnesses and expert witness Hugh Brody, Addy J\u00E2\u0080\u0099s comments are revealing. He notes, \u00E2\u0080\u009Cthey also lacked to a great extent, the ability to plan or manage, with any degree of success, activities or undertakings other than fishing or hunting and trapping.\u00E2\u0080\u009D572 Addy J also observes, \u00E2\u0080\u009Cit seems that many of their \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0570 Amongst 42 citations of Disrobing, such discussion includes several book reviews and at least one formal response critical of Disrobing. See F.C Decoste, and Hadley Friedland, \"Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation,\" Book Review of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson and Albert Howard (2010) 377 Ottawa L Rev at 277, \u00E2\u0080\u009CIV The Relevance of Tradition in the Real World;\u00E2\u0080\u009D Further, Sinclair Niigowedom James, \u00E2\u0080\u009CInks of Knowledge, Permanence, and Collectivity: A Response to Disrobing the Aboriginal Industry,\u00E2\u0080\u009D Book Review of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson and Albert Howard, (2009) 203 Canadian Literature at 196-201. 571 Sinclair notes that scholars including Tom Flanagan and political think tanks such as the Frontier Centre for Public Policy, and national Globe and Mail columnist Margaret Wente, all endorse Widdowson\u00E2\u0080\u0099s view of Indigenous peoples, their relationship with Canada, and the ways they should \"develop.\" Moreover, he speculates that several practices and policies of the federal Government, unfavourable to Canada\u00E2\u0080\u0099s Aboriginal peoples, have been influenced by Widdowson\u00E2\u0080\u0099s views. Similarly, Decoste and Friedland note that The National Post has installed Widdowson as its go-to expert on Aboriginal affairs. See\t \u00C2\u00A0 F.C Decoste, and Hadley Friedland. \"Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation,\" Book Review of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson and Albert Howard (2010) 377 Ottawa Law Review 277. 572 Blueberry River v Canada (DIA) [1987] FCC 1005 under the heading \u00E2\u0080\u009CThe Dunne Za Cree Society.\u00E2\u0080\u009D Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 169\t \u00C2\u00A0decisions even regarding these activities, that is, hunting, could be better described as spontaneous or instinctive, rather than deliberately planned.\u00E2\u0080\u009D573 As I have narrated above, spontaneity is seemingly a feature of the traditional seasonal round and the Dunne Za economic system in general, which adapts to changing conditions and whose fluidity defies contemporary land use planning regimes. However, it seems Addy J deduces that the seasonal round is flawed by virtue of its spontaneity, rather than seeing this as a feature of the traditional seasonal round and adaptive land management. That is, that a lack of deliberate planning spoils or at least, undermines its methodology. Addy J rejects this different methodology comparable to the way in which Widdowson indicts the methodologies of traditional knowledge in general. 5.1.1 A further symptom of cultural untranslatability: the legitimacy of law derived from oral history In extracting and deciphering Dunne Za law, for clarity of organisation I chose to grapple with the oral histories as a source of law separate from the initial submission. Similar to the way in which the attitudes of Widdowson and Addy J seem to evidence a failure to try to be receptive to other ways of life and a reticence towards embracing other epistemologies, the enigma presented by much of the oral histories aroused in my mind, a further symptom of cultural untranslatability: the challenges and risks for those seeking that decision makers recognise oral histories as a legitimate source of law. This is distinct from the principles and practices contained within oral histories being weighted as evidence and one of multiple considerations in the decision-making calculus, as \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0573 ibid. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 170\t \u00C2\u00A0occurs for example, in administrative decision making, such as evaluating the adequacy of consultation in duty to consult matters. At the outset of his chapter which discusses the sources of Indigenous legal traditions and, amongst other things, what gives them binding authority, Borrows identifies a fundamental issue characterizing Canada\u00E2\u0080\u0099s multi-juridical landscape, namely that problems plaguing Canada\u00E2\u0080\u0099s law, stem from \u00E2\u0080\u009Clong standing disputes about the legitimacy of its origins.\u00E2\u0080\u009D574 By way of contrast, statute law derives legitimacy from the institutions of representative democracy and responsible government that bind its makers, whereby the people, demos, elect representatives who pass laws on their behalf. It follows that there is a need to understand Indigenous legal institutions and governance, in order to understand that such teachings had legitimacy as law.575 It is beyond the scope of this thesis to examine the legal institutions of the Dunne Za in any detail, given I was only able to glean scant reference to these from within the initial submission. Returning to the question of how one \u00E2\u0080\u009Clegitimizes\u00E2\u0080\u009D narrative as a source of binding authority, namely legal principles and practices, in the eyes of non Dunne Za decision makers, there is the risk that this source of law will be equated with myth, and be seen as fantastic, unreal and devalued as of less or no legal weight. By way of comparison, in Greek mythology, myths and legends communicated lessons and themes. However, contrary to Indigenous legal traditions, I do not think they carried decision-making influence in the sense that lessons from such stories were not applied in the Heliaia of Fifth Century Athens. There were separate judicial and legislative \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0574 See John Borrows, Canada\u00E2\u0080\u0099s Indigenous Constitution (Toronto, University of Toronto Press, 2010) at 6, which provides, \u00E2\u0080\u009Cwhile Canadians have much to celebrate because of our law, we simultaneously continue to suffer from conflicts rooted in long standing disputes about the legitimacy of its origins, the justice of its contemporary application.\u00E2\u0080\u009D 575 Borrows seems to discuss this in his discussion of the sources of Indigenous legal traditions. See Chapter 2, \u00E2\u0080\u009CSources and Scope of Indigenous Legal Traditions,\u00E2\u0080\u009D in John Borrows, Canada\u00E2\u0080\u0099s Indigenous Constitution (Toronto, University of Toronto Press, 2010). \t \u00C2\u00A0\t \u00C2\u00A0 171\t \u00C2\u00A0systems. Accordingly, a risk of terming oral histories as myth seems that they will be compared with Greek and other mythologies and not appreciated as authoritative sources of binding law. However, this risk is arguably a product of assuming a Non Dunne Za epistemology that falsely dichotomises history and historical method from myth and experience, rendering one a legitimate source of authority, and the other, fantastic. Ridington identifies what he perceives is a false demarcation between these methodologies, and what are deemed to be the authoritative sources, of history and myth. He explains, \u00E2\u0080\u009Chistory was a resource to be mined from lodes of artifacts and documents. History was dead and gone from the breadth of experience. Beyond history lay myth and legend.\u00E2\u0080\u009D576 To illustrate this divide, I extract in part, a story told by Doig First Nation member, Japasa as paraphrased by Ridington: My dad said that when he was a boy, about nine years old, he went into the bush alone. He was lost from his people. [In the night it rained]. He was cold and wet from the rain, but in the morning he found himself warm and dry. A pair of silver foxes had come and protected him. After that, the foxes kept him and looked after him. He stayed with them and they protected him. Those foxes had three pups. The male and female foxes brought food for the pups. They brought food for my dad, too. They looked after him as if they were all the same. Those foxes wore clothes like people. My dad said he could understand their language. He said they taught him a song.577 \u00E2\u0080\u009CAt this point in the narrative, the old man sang the boy\u00E2\u0080\u0099s song. He sang his medicine song\u00E2\u0080\u00A6I did not know he was giving up the power the foxes gave to him in a time out of time, alone in the bush in the 1890s.\u00E2\u0080\u009D578 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0576\t \u00C2\u00A0Robin Ridington Little Bit Know Something, Stories in a Language of Anthropology, (Iowa: University of Iowa Press, 1990) at 5. Emphasis added. 577 id at 7. 578 id at 8. \t \u00C2\u00A0\t \u00C2\u00A0 172\t \u00C2\u00A0My dad said he stayed out in the bush for twenty days. Ever since that time foxes have been his friends. Anytime he wanted to he could set a trap and get foxes\u00E2\u0080\u00A6\u00E2\u0080\u009D579 Ridington\u00E2\u0080\u0099s annotation and commentary helpfully provides, \u00E2\u0080\u009Cthe old man\u00E2\u0080\u0099s stories recalled times that we would think of as being very different from one another. One that we would call history, the other myth.\u00E2\u0080\u009D580 Moreover, \u00E2\u0080\u009Cwe can use the traditions of historical scholarship to substantiate that what Japasa described really happened. There is no documentary or scientific evidence to indicate that frogs really sing\u00E2\u0080\u00A6 But the old man said he experienced this too. Because we lack documentary evidence we are compelled to class his second story as myth. In our thoughtworld, myth and reality are opposites.\u00E2\u0080\u009D 581 Ridington cautions, \u00E2\u0080\u009Cunless we can find some way to understand the reality of mythic thinking, we will remain prisoners of our own language, our own thoughtworld. In this world, one story is real, the other fantasy.\u00E2\u0080\u009D582 By contrast, \u00E2\u0080\u009Cin the Indian way of thinking, both stories are true because they describe personal experience.\u00E2\u0080\u009D583 \u00E2\u0080\u009CBoth of Japasa\u00E2\u0080\u0099s stories were true to his experience.\u00E2\u0080\u009D584 Summarising this concisely, the fault lies in the failure to embrace the Dunne Za epistemology or thoughtworld. That is, the lens with which their world is viewed. A non Dunne Za paradigm does not necessarily accommodate myth as a legitimate source of authority. These differing epistemologies result in our interpreting the legitimacy of respective legal traditions as such: \u00E2\u0080\u009COur own translations strongly stress obedience to duly constituted authority\u00E2\u0080\u00A6 we are literal minded in interpreting the meaning of experience in a hunting culture.\u00E2\u0080\u009D585 We misunderstand myth by interpreting it as flawed history\u00E2\u0080\u00A6For hunters, dreams \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0579 ibid. 580 id at 10. Emphasis added. 581 ibid. Emphasis added. 582 ibid. 583 ibid. 584 ibid. 585 id at 6. \t \u00C2\u00A0\t \u00C2\u00A0 173\t \u00C2\u00A0and visions validate and explain the past in terms of present experience. For historians, the past is validated by documents rather than by personal experience\u00E2\u0080\u00A6the true history of these people will have to be written in a mythic language. Like the stories of Japasa, it will have to combine stories of people coming together with other people and those that tell of people coming together with animals.586 As such, it seems that failing to be sensitive to the Dunne Za \u00E2\u0080\u009Cthoughtworld\u00E2\u0080\u009D or epistemology, risks interpreting its legal traditions, some of which are sourced in myth, as deriving from illegitimate sources of authority. Due to this, Dunne Za epistemologies, whose intricacies include the fact that \u00E2\u0080\u009Cdreams and visions validate and explain the past in terms of present experience,\u00E2\u0080\u009D587 must be appreciated in order to comprehend the significance of oral histories as legitimate sources of law. Put concisely, we must be sympathetic to the methodologies supporting the Dunne Za epistemology or thoughtworld in order to see legitimacy in its legal traditions. In spite of Professor Ridington\u00E2\u0080\u0099s careful explanation, and although people such as myself might be amenable to such ways of thinking, there is a risk that decision makers who are not also trained in anthropology and amenable to the need to appreciate multiple epistemologies, will not be able to embrace such traditions as law.588 5.2 Technical legal impediments: at the mercy of legal ingredients Moving on from consideration of cultural impediments to decision makers\u00E2\u0080\u0099 capacity to respect and consider Indigenous legal traditions, I now turn to examine, technical legal ones. The trigger for \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0586 id at 13. Emphases added. 587 id at 12. 588 Many decision makers may be used to the scientific method, from, for example, hearing expert witnesses give evidence with respect to ecology and other disciplines that are sourced in western scientific principles. \t \u00C2\u00A0\t \u00C2\u00A0 174\t \u00C2\u00A0the following discussion derives from the Supreme Court\u00E2\u0080\u0099s emphasis on the duty to consult as part of the process of reconciliation, as well as the dissenting judgment of Garson JA in West Moberly and what it indicates as to how the reasonableness standard is applied to the substantive legal question of the adequacy of consultation. The reiteration of the duty as forming part of a process of reconciliation, and concern with the adequacy of process, which is often proven statistically by the amount of time expended in consultation,589 as opposed to the outcome attained by this process, is troubling for what it indicates as to the direction that interpretation of the duty is taking. In the SCC\u00E2\u0080\u0099s analysis of at least three of the duty to consult cases that have come before it,590 the SCC emphasizes the duty to consult as being part of a process of reconciliation. In Rio Tinto in particular, the SCC notes, \u00E2\u0080\u009Cthe honour of the Crown is best reflected by a requirement for consultation with a view to reconciliation.\u00E2\u0080\u009D591 Further, that \u00E2\u0080\u009Cthe duty seeks to provide protection to Aboriginal and treaty rights while furthering the process of reconciliation.\u00E2\u0080\u009D592 Similarly, the post-Haida case law confirms, \u00E2\u0080\u009Cconsultation is concerned with an ethic of ongoing relationships\u00E2\u0080\u009D and seeks to further an ongoing process of reconciliation by articulating a preference for remedies \u00E2\u0080\u009Cthat promote ongoing negotiation.\u00E2\u0080\u009D593 The aspirational language italicized is noteworthy. The SCC cites a segment from Haida that encapsulates this emphasis: The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0589 For example, the 3.5 year consultation process in Taku, and Garson JA\u00E2\u0080\u0099s similar approach in West Moberly at para 273. 590 Namely Haida, Taku and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council 2010 SCC 43. 591 Rio Tinto at para 35. 592 id at para 34 Emphasis added. 593 Rio Tinto at para 38 citing Dwight G. Newman, The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Pub, 2009) at 21. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 175\t \u00C2\u00A0Rather, it is a process flowing from the rights guaranteed by s 35 (1) of the Constitution Act, 1982.594 The salient impression gleaned from the words italicised is worrisome. It suggests that ostensible effort on the part of the Crown is good enough, and that provided that the process followed is reasonable and that both parties are working together, whether or not rights and interests are realized and protected, is of secondary importance. This interpretation is problematic. The persuasive minority judgment of Garson JA attests this is a realistic concern. I have critiqued Garson\u00E2\u0080\u0099s judgment for not paying equal attention to both process and outcome. Secondly, in commonality with the Taku reasoning, I have indicted it for placing emphasis on what I have termed \u00E2\u0080\u009Cnumerical compliance\u00E2\u0080\u009D with insufficient attention to, the substance of communications. From my perspective, her approach raises serious concerns about the ability of First Nation interests to be heard. For example, it struck me that to satisfy a reasonable process, and review on a reasonableness standard, to what extent does it matter what transpires at consultation meetings? Similarly, to what extent could an applicant require inquiry into the substance of communications? However, upon further reflection, while I think my concerns about the ability of Indigenous legal traditions to be taken into account are legitimate, some of my critique as to Garson JA\u00E2\u0080\u0099s legal reasoning seems unwarranted. That is, I think she may have had a point. The reasoning of Garson JA in its contrast to the evidence of Petitioner Willson,595 illuminates a predicament for applicants seeking to have their concerns taken into account and for decision \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0594 Rio Tinto at para 38, citing Haida at para 32. Emphases added. 595 See at 5.1 above. \t \u00C2\u00A0\t \u00C2\u00A0 176\t \u00C2\u00A0makers\u00E2\u0080\u0099 ability to do so. We have a problematic scenario in the sense of having a situation governed by legal mechanics that permit unsatisfactory outcomes as we have a substantive outcome that only needs to satisfy a reasonableness standard. To be clear, the topic requires some clarification. While the scope of consultation is a procedural question of law and evokes a correctness standard, the adequacy of consultation is a substantive, and not a procedural question, of mixed fact and law, and is subject to a reasonableness standard upon review. Borrowing from Binnie J in Dunsmuir, such a scenario, whereby there are multiple aspects of administrative decisions, is \u00E2\u0080\u009Cknown in the judicial review court as segmentation.\u00E2\u0080\u009D596 To examine the legality of Garson\u00E2\u0080\u0099s reasoning, I must first explain, the workings, rationale and application of the reasonableness standard. I defer to Dunsmuir for such guidance, in the hope that it can answer my inquiries. In Dunsmuir, the leading case on the reasonableness standard and on which Garson JA relies, the SCC abolished the former multiple variants of reasonableness, and collapsed these into a single reasonableness standard, such that two standards of review exist in Canadian administrative law: correctness and reasonableness.597 An implication of such conflation is that multiple variables inform the degree of deference to attribute the decision maker in a reviewer\u00E2\u0080\u0099s exercise of calibrating the degree of deference, or what has been termed, \u00E2\u0080\u009Cjudging reasonableness,\u00E2\u0080\u009D598 which is required within the task of reviewing a decision pursuant to the reasonableness standard.599 This in itself requires some explaining. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0596 Dunsmuir v. New Brunswick, 2008 SCC 9 at para 142. 597 id at para 45 and 134. 598 id at para 150. 599 I note this is Binnie J\u00E2\u0080\u0099s articulation of the application of the single standard or reasonableness. As Professor Woolley points out, David Mullan has noted that Binnie J\u00E2\u0080\u0099s notion of having differing degrees of deference, as distinct from having a single type of deference, was not unanimous and that this point remains unresolved. That is, Dunsmuir did not clearly resolve \u00E2\u0080\u009Cwhether within reasonableness review and depending on the type of decision and / or decision maker, varying forms of deference were appropriate.\u00E2\u0080\u009D See David Mullan, \"Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's Try Again!\" (2008) 21 Can. J. Admin. L. & Prac. 117 at 134-136, \t \u00C2\u00A0\t \u00C2\u00A0 177\t \u00C2\u00A0Reasonableness and deference: its rationale and implications A governing consideration for the application of the reasonableness standard, and indeed, the rationale for this standard, is deference. The majority in Dunsmuir has performed an excellent job of outlining the role and implications of deference and as such, I largely borrow from it. \u00E2\u0080\u009CIn short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.\u00E2\u0080\u009D600 As Bastarache and Le Bel JJ explain, by virtue of the fact that Courts exercise the \u00E2\u0080\u009Cconstitutional functions of judicial review,\u00E2\u0080\u009D 601 they \u00E2\u0080\u009Cmust be sensitive\u00E2\u0080\u00A6to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.\u00E2\u0080\u009D602 Professor Mullan completes the explanation of deference\u00E2\u0080\u0099s rationale, noting the policy of deference \u00E2\u0080\u009Crecognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime.\u00E2\u0080\u009D603 But what does it mean to be deferential? How does this manifest? The majority informs, \u00E2\u0080\u009Cthe concept of deference\u00E2\u0080\u00A6is both an attitude of the court and a requirement of the law of judicial \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0cited in Alice Woolley and Shaun Fluker, What Has Dunsmuir Taught? Case Comment (2010) 47 Alta. L. Rev. at 1017 \u00E2\u0080\u0093 1035 at para 2. Whereas the majority applies their conflation of two standards of reasonableness to one in the context of review of decisions of administrative tribunals, Binnie J extends the application of a single reasonableness standard to all contexts of administrative review. That is, to review of decision making by any administrative decision maker. See Dunsmuir at para 134. 600 Dunsmuir at para 49. 601 id at para 27. 602 ibid, 603 D. J. Mullan, \u00E2\u0080\u009CEstablishing the Standard of Review: The Struggle for Complexity?\u00E2\u0080\u009D (2004) 17 C.J.A.L.P. 59, at p. 93. Cited in Dunsmuir at para 49. \t \u00C2\u00A0\t \u00C2\u00A0 178\t \u00C2\u00A0review. It does not mean that courts are subservient to the determinations of decision makers\u00E2\u0080\u00A6Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.\u00E2\u0080\u009D604 As a result of such respect, the concept of deference requires of the courts \u00E2\u0080\u009Cnot submission but a respectful attention to the reasons offered or which could be offered in support of a decision.\u00E2\u0080\u009D605 Specifically, \u00E2\u0080\u009Cdeference in the context of the reasonableness standard requires that courts \u00E2\u0080\u009Cgive due consideration to the determinations of decision makers.606 By way of historical background, which is necessary to understand the intricacies of and difficulty with the current application of the reasonableness standard, Bastarache and Le Bel JJ explain that prior to Dunsmuir two standards of reasonableness were available to the judicial review court which was tasked with determining whether the standard of patent unreasonableness or reasonableness simpliciter applied. Determining which standard ought apply proved problematic,607 as did the application of the patent unreasonableness standard.608 This situation, was explained by the idea that multiple, valid interpretations of a statutory provision or answers to a legal dispute might exist.609 Justice Binnie in Dunsmuir explores the implications of the Court having abandoned the distinction between patent unreasonableness and reasonableness simpliciter in some detail. From his perspective, though this is not uncontested, the variables that previously informed the choice of \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0604 Dunsmuir at para 48. Emphasis added. 605 \u00E2\u0080\u009CThe Politics of Deference: Judicial Review and Democracy\u00E2\u0080\u009D, in Michael Taggart, ed., The Province of Administrative Law (Oxford [England] : Hart Publishing, 1997) at 286. Emphasis added. Cited in Dunsmuir at para 48. 606 Dunsmuir at para 49. 607 id at para 39. 608 ibid. 609 id at para 41. \t \u00C2\u00A0\t \u00C2\u00A0 179\t \u00C2\u00A0either patent unreasonableness or reasonableness simpliciter now determine the degree of deference to award the decision maker in the application of the single standard of reasonableness. One might call this an inter to intra transition in the sense that debate remains, but the debate has shifted from one between the choice of patent unreasonableness and reasonableness simpliciter, to debate within a single standard as to the appropriate degree of deference to attribute a decision maker. This task is one of \u00E2\u0080\u009Cjudging reasonableness.\u00E2\u0080\u009D610 It must be calibrated to fit the applicable circumstances.611 Such variables that inform the degree of deference to attribute the decision maker in applying the reasonableness standard include, the nature and content of the question, which \u00E2\u0080\u009Chelps to define the range of reasonable outcomes within which the administrator is authorized to choose.\u00E2\u0080\u009D612 Justice Binnie casts doubt on the efficacy of such conflation declaring, \u00E2\u0080\u009Cin practice, the result of today\u00E2\u0080\u0099s decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another without any overall saving to motorists in time or expense.\u00E2\u0080\u009D613 More pertinently, Binnie J draws attention to an accompanying risk. He warns, that a danger of labelling the most \u00E2\u0080\u009Cdeferential\u00E2\u0080\u009D standard as reasonableness is that it might be taken wrongly as an invitation to reviewing judges to re-weigh the input that resulted in the administrator\u00E2\u0080\u0099s decision, as if it were the judge\u00E2\u0080\u0099s view of reasonableness that counts.614 This risk and its potential for reviewing judges to effectively apply a correctness standard under the guise of being deferential, is real and has been the subject of recent academic critique .615 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0610 id at para 150. 611 ibid. 612 id at para 138. 613 id at para 142. 614 id at para 148. 615 Alice Woolley and Shaun Fluker, What Has Dunsmuir Taught? Case Comment (2010) 47 Alta. L. Rev. at 1017 \u00E2\u0080\u0093 1035. Woolley and Fluker note several examples of poor applications of the reasonableness standard. \t \u00C2\u00A0\t \u00C2\u00A0 180\t \u00C2\u00A0Having established the rationale for the reasonableness standard, namely its governance by the guiding principle of deference owing to the constitutional delegation of some matters to administrative decision makers, by virtue of their particular expertise or \u00E2\u0080\u009Cfield sensitivity,\u00E2\u0080\u009D616 and others to courts, Bastarache and Le Bel JJ specify that the reasonableness standard is animated by the principle that underlies the development of the two previous standards of reasonableness. Certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Rather, they may give rise to a number of possible reasonable conclusions. As a consequence, tribunals have a margin of appreciation within the range of acceptable and rational solutions.617 Secondly, they provide a test for a reasonable decision. This involves a court inquiring \u00E2\u0080\u009Cinto the qualities that make a decision reasonable, referring both to the process of articulating reasons,\u00E2\u0080\u009D618 the \u00E2\u0080\u009Cjustification, transparency and intelligibility within the decision making process,\u00E2\u0080\u009D619 and to outcomes.620 In relation to the second component, outcomes, or the substance of the decision, reasonableness is also concerned with whether, in substance, \u00E2\u0080\u009Cthe decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.\u00E2\u0080\u009D621 In applying this test, a judge\u00E2\u0080\u0099s role is to identify the outer boundaries of reasonable outcomes within which the administrator is free to choose.622 Moreover, a reviewing court is tasked with juggling multiple variables. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0616 Dunsmuir at para 49. 617 id at para 47. 618 ibid. 619 ibid. 620 ibid. 621 ibid. 622 Dunsmuir per Binnie J at para 148. \t \u00C2\u00A0\t \u00C2\u00A0 181\t \u00C2\u00A0So, \u00E2\u0080\u009Ca standard of reasonableness\u00E2\u0080\u00A6requires a reviewing court to look at the process and substance of the administrative decision,\u00E2\u0080\u009D623 or put simply, the how and what of an administrative decision. What does it mean in practice to assess the \"justification, transparency and intelligibility within the decision-making process\"624 and \"whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law\"?625 In relation to the second substance limb, Woolley and Fluker suggest that \u00E2\u0080\u009Cfor courts to follow the mandate of Dunsmuir requires focusing on the concept of a range of solutions, and identification of whether the decision in question falls within that range, without a detailed exegesis of why the decision is not only reasonable, but also correct (or not only unreasonable, but also incorrect).626 A useful analogy illustrates what \u00E2\u0080\u009Cdoing deference\u00E2\u0080\u009D627 constitutes: \u00E2\u0080\u009Coccupying a position of deference is difficult. When someone, even someone to whom one is personally connected, like a spouse, does something with which one disagrees, it can be extraordinarily difficult to simply say, \"well, it is not what I would have done, but it can be justified, and it is his/her decision to make.\"628 Application of these points to Justice Garson\u00E2\u0080\u0099s analysis Despite having examined the rationale for the reasonableness standard and the test for applying it, I have still not been able to answer my own inquiries. Namely, the particulars of what applying the reasonableness standard requires, as well as clarifying whether Garson JA\u00E2\u0080\u0099s findings were legally sound. I have indicted the Garson JA judgment for, inter alia, having placed too much focus on the process of consultation and scant attention to outcome. Does a reasonableness review require a \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0623 Woolley, supra note 615 at para 37. 624 Dunsmuir at para 47. 625 Woolley, supra note 615 at para 37. 626 id at para 46. Emphasis added. 627 id at para 5. 628 id at para 46. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 182\t \u00C2\u00A0reviewer to conduct two discrete analyses of the reasonableness of the process of consultation as well as of the reasonableness of the outcome, with equal weight being awarded to both? Looking at West Moberly, this point is unclear. I shall term this question \u00E2\u0080\u009Cthe process vs outcome ratio question.\u00E2\u0080\u009D Do equal \u00E2\u0080\u009Cparts\u00E2\u0080\u009D process and equal \u00E2\u0080\u009Cparts\u00E2\u0080\u009D outcome inform the reviewer\u00E2\u0080\u0099s decision? The submissions of the petitioners in West Moberly suggest this. Namely, they suggest that two discrete analyses are required. The discussion of the rationale, workings and genesis of the single standard of reasonableness above, provides a useful foundation from which to examine these questions. Relying upon Gitxsan First Nation v. British Columbia (Minister of Forests) 2004 BCSC 1734, (2004) B.C.J. No. 2714 (S.C.) (QL), the petitioners submitted, \u00E2\u0080\u009Cmore recently, this court has adopted a two-stage approach which considers first the reasonableness of the process of consultation and secondly the reasonableness of the overall outcome (that is, the accommodations reached, if any).\u00E2\u0080\u009D 629 The petitioners call for two discrete analyses contrasts with Justice McLaughlin\u00E2\u0080\u0099s comments in Haida: The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action \u00E2\u0080\u009Cviewed as a whole, accommodates the collective aboriginal right \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0629 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia at para 14: Gitksan at para 63 provides, \u00E2\u0080\u009CIn assessing the adequacy of the Crown's efforts to fulfil its duty to consult and accommodate, the court will usually look at the overall offer of accommodation made by the Crown and weigh it against the potential impact of the infringement on the asserted Aboriginal interests having regard to the strength of those asserted interests. The court will not normally focus on one aspect of the negotiations because the process of give and take requires giving in some areas and taking in other areas. It is the overall result which must be assessed.\u00E2\u0080\u009D Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 183\t \u00C2\u00A0in question\u00E2\u0080\u009D: Gladstone, supra, at para. 170. What is required is not perfection, but reasonableness.630 Further, \u00E2\u0080\u009Cthe focus, as discussed above, is not on the outcome, but on the process of consultation and accommodation.\u00E2\u0080\u009D631 Relying again on Gitksan, the petitioners submitted that such comments are distinguishable, as Haida contemplated the existence of an administrative process such as that which occurred within the statutory consultation provided for in Taku under the Environmental Assessment Act,632 such an administrative process being absent in the decision making process that affected the West Moberly First Nation. In the event of such ambiguity, to test the legality of Garson JA\u00E2\u0080\u0099s analysis, I defer to Dunsmuir. As I have noted above, Dunsmuir provides that reasonableness involves a court inquiring \u00E2\u0080\u009Cinto the qualities that make a decision reasonable, referring both to the process of articulating reasons\u00E2\u0080\u009D633 and to outcomes. In relation to the second component outcomes, or the substance of the decision, reasonableness is also concerned with whether in substance \u00E2\u0080\u009Cthe decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.\u00E2\u0080\u009D634 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0630 Haida at para 62. Emphasis added. 631 id at para 63. Emphases added. 632 Gitksan at para 41 provides: \u00E2\u0080\u009CShe subsequently made comments at [paragraph] 60 - 63 with respect to the standard of review that the courts would likely apply in judging the adequacy of the government's efforts to discharge its duty to consult and accommodate pending claims resolution. However, these latter comments were made in the context of an administrative process which the Province had yet to establish in that case. Similarly, no administrative process was in place for the purposes of this case.\u00E2\u0080\u009D Emphasis added. 633 Dunsmuir at para 47. 634\t \u00C2\u00A0ibid. \t \u00C2\u00A0\t \u00C2\u00A0 184\t \u00C2\u00A0However, Dunsmuir is not too helpful in answering this ratio question, or demonstrating how this test is to be applied. The more recent decision of Newfoundland and Labrador Nurses\u00E2\u0080\u0099 Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 interprets Dunsmuir and sheds some light on how this test is to be applied. In particular, it emphasizes the principles that govern its application of the Dunsmuir test and \u00E2\u0080\u009Cframe its analysis.\u00E2\u0080\u009D 635 At the outset I note that Newfoundland Nurses explores the adequacy of reasons in some detail and primarily concerns the role and influence of reasons in the Dunsmuir test for reasonableness. This is less relevant to my inquiry. I rely upon Newfoundland Nurses more broadly for guidance in interpreting the Dunsmuir test as a whole, and particularly, for demonstrating a reviewing court\u00E2\u0080\u0099s task of identifying the range of reasonable outcomes. Newfoundland Nurses concerned the judicial review of an arbitrator\u00E2\u0080\u0099s reasons for its decision. As a result of a dispute between a union and an employer, an arbitrator was tasked with deciding the issue of whether time as a casual employee could be credited towards annual leave entitlement if that employee became permanent.636 The arbitrator decided in the negative, after which the Union challenged the legality of the arbitrator\u00E2\u0080\u0099s decision-making process on the ground that the reasons were insufficient and therefore, that the decision was unreasonable. The arbitrator was required to interpret provisions of the applicable collective agreement, which is \u00E2\u0080\u009Cclassic fare\u00E2\u0080\u009D for labour arbitrators.637 Its reasoning outlined the facts, the parties\u00E2\u0080\u0099 arguments, relevant provisions of the collective agreement, and a number of applicable interpretive principles.638 In its review, the SCC concluded, \u00E2\u0080\u009Cthese points\u00E2\u0080\u00A6provided a reasonable basis for the arbitrator\u00E2\u0080\u0099s conclusion, based on a \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0635 Newfoundland Nurses at para 11. 636 id at para 5. 637 id at para 23. 638 id at para 5 to 6. \t \u00C2\u00A0\t \u00C2\u00A0 185\t \u00C2\u00A0plain reading of the agreement itself.\u00E2\u0080\u009D639 Moreover, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes.640 The SCC commenced its analysis by reciting key passages from Dunsmuir that framed its analysis. I have referred to several of these above.641 In particular, these passages emphasise the deference attributed to the decision maker in the application of the reasonableness standard and the need to exercise judicial restraint. The Court reiterated the need for judicial restraint in assessing the decisions of specialized administrative tribunals, reasoning that Dunsmuir\u00E2\u0080\u0099s calling for justification, transparency and intelligibility, \u00E2\u0080\u009Crepresents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist.\u00E2\u0080\u009D642 The justification for judicial restraint stems from recognition of the expertise of certain decision makers \u00E2\u0080\u009Crendering decisions in their respective spheres of expertise.\u00E2\u0080\u009D643 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0639 id at para 7. 640 ibid. 641 See Newfoundland Nurses at para 11. Chief of these were: * \u00E2\u0080\u009CReasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: Certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions;\u00E2\u0080\u009D Dunsmuir at para 47; * Reasonableness \u00E2\u0080\u009Cis also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law;\u00E2\u0080\u009D Dunsmuir at para 47; * \u00E2\u0080\u009CA court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes;\u00E2\u0080\u009D Dunsmuir at para 47; * \u00E2\u0080\u009CDeference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.\u00E2\u0080\u009D Dunsmuir at para 48. 642 Newfoundland Nurses at para 13. Emphasis added. 643 ibid. \t \u00C2\u00A0\t \u00C2\u00A0 186\t \u00C2\u00A0Importantly for my purposes, the SCC eschewed a formalistic approach to the test in Dunsmuir. It held: read as a whole, I do not see Dunsmuir as\u00E2\u0080\u00A6 advocating that a reviewing court undertake two discrete analyses \u00E2\u0080\u0094 one for the reasons and a separate one for the result644\u00E2\u0080\u00A6 It is a more organic exercise \u00E2\u0080\u0094 the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.645 This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at \u00E2\u0080\u009Cthe qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes\u00E2\u0080\u009D (para. 47).646 Further, the SCC re-affirmed its approval of Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56 (CanLII), namely that Dunsmuir seeks to \u00E2\u0080\u009Cavoid an unduly formalistic approach to judicial review.\u00E2\u0080\u009D647 Moreover, that \u00E2\u0080\u009Cperfection is not the standard\u00E2\u0080\u009D and that reviewing courts should ask whether \u00E2\u0080\u009Cwhen read in light of the evidence before it and the nature of its statutory task, the Tribunal\u00E2\u0080\u0099s reasons adequately explain the bases of its decision.648 In addition, hinting at what a good example of \u00E2\u0080\u009Cdoing deference\u00E2\u0080\u009D or proficient application of the Reasonableness standard649 requires, the SCC provided: In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show: \u00E2\u0080\u009Crespect for the decision-making process of adjudicative bodies with regard to both the facts and the law\u00E2\u0080\u009D (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.650 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0644 Dunsmuir at para 14. Citing from Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at \u00C2\u00A7\u00C2\u00A712:5330 and 12:5510.\t \u00C2\u00A0645 Newfoundland Nurses at para 14 Emphasis added. 646 ibid. 647 Canada Post at para 164. Cited in Newfoundland Nurses at para 18. 648 Newfoundland Nurses at para 18, Citing Canada Post at para 163. 649 Woolley, supra note 615 at para 5. 650 Newfoundland Nurses at para 15. Emphasis added, \t \u00C2\u00A0\t \u00C2\u00A0 187\t \u00C2\u00A0In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.651 An Assessment After this lengthy diversion into Dunsmuir and Newfoundland Nurses, I do not think that Newfoundland Nurses definitively answers my question as to the intricacies of the application of the reasonableness standard to the substantive legal question of the adequacy of consultation, and in particular, the \u00E2\u0080\u009Cprocess vs outcome ratio\u00E2\u0080\u009D question which was at issue in West Moberly. Nevertheless, it applies the Dunsmuir test and eschews a formalistic approach to its application. It upholds Dunsmuir\u00E2\u0080\u0099s intention as seeking to \u00E2\u0080\u009Cavoid an unduly formalistic approach to judicial review.\u00E2\u0080\u009D652 Rather, it is to be \u00E2\u0080\u009Ca more organic exercise\u00E2\u0080\u009D653 whereby the reasons are to be \u00E2\u0080\u009Cread together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.\u00E2\u0080\u009D654 This I think is the primary message from this case. Perhaps demanding that a decision maker\u00E2\u0080\u0099s reasoning ostensibly provide equal weight to both the process of consultation as well as to it outcome, is too formalistic, and is contrary to Newfoundland Nurse\u00E2\u0080\u0099s ratio. Indeed, such an interpretation would adhere with Dunsmuir\u00E2\u0080\u0099s simplifying intention with respect to the choice of standard of review and its application.655 Secondly, with respect to the legality of Garson JA\u00E2\u0080\u0099s reasoning, measured against what is required to \u00E2\u0080\u009Cdo deference\u00E2\u0080\u009D 656 in the application of the reasonableness standard, I recall Binnie J\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0651 id at para 16. Emphasis added. 652 Dunsmuir at para 164. 653 Newfoundland Nurses at para 14. 654 ibid. 655 Woolley, supra note 615 at para 1, referencing Dunsmuir at para 34. 656 id at para 5. \t \u00C2\u00A0\t \u00C2\u00A0 188\t \u00C2\u00A0admonition that the risk associated with \u00E2\u0080\u009Clabeling the most \u00E2\u0080\u009Cdeferential\u00E2\u0080\u009D standard as reasonableness, is that it might be taken wrongly as an invitation to reviewing judges\u00E2\u0080\u00A6to re-weigh the input that resulted in the administrator\u00E2\u0080\u0099s decision, as if it were the Judge\u00E2\u0080\u0099s view of reasonableness that counts.\u00E2\u0080\u009D657 Academic commentators have helpfully completed much analysis of case law, from which they derive indicia of \u00E2\u0080\u009Cgood\u00E2\u0080\u009D and \u00E2\u0080\u009Cbad\u00E2\u0080\u009D examples of \u00E2\u0080\u009Cdoing deference\u00E2\u0080\u009D in the application of the reasonableness standard. Consistent with Dunsmuir\u00E2\u0080\u0099s test applied in Newfoundland Nurses, and the inverse of Binnie J\u00E2\u0080\u0099s concern, proficient application of the reasonableness standard requires the court to identify the outer boundaries of reasonable outcomes, rather than the Court re-weighing the inputs that led to the administrative decision as if it were the Judge\u00E2\u0080\u0099s view of reasonableness that counts.658 Secondly, competent application of the reasonableness standard requires \u00E2\u0080\u009Cthe discipline to avoid being more intrusive in review than this test contemplates.\u00E2\u0080\u009D659 It demands a reviewer resist imposing its own view of matters.660 Similarly, it is evidenced by a reviewer not deliberating whether it agreed with the administrative decision. From Woolley\u00E2\u0080\u0099s perspective and the result of the findings of her examination of cases, such is indicated by \u00E2\u0080\u009Cthe relatively short length, at most several paragraphs of text, of the Court\u00E2\u0080\u0099s application of the reasonableness standard to the impugned decision, generally finding that either the decision falls within a range of outcomes or that there was evidence to support the decision.\u00E2\u0080\u009D661 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0657 Dunsmuir at para 141 per Binnie J. 658 Woolley, supra note 615 at para 42. 659 id at para 5. 660 id at para 40. 661 id at para 45. \t \u00C2\u00A0\t \u00C2\u00A0 189\t \u00C2\u00A0By contrast, indicia of a flawed application of deference include viewing the decision before the administrator in full and concluding whether the decision is reasonable \u00E2\u0080\u009Cbased on its agreement / disagreement with the decision\u00E2\u0080\u009D662 such that the \u00E2\u0080\u009C\u00E2\u0080\u00A6reasonableness of the decision turns on its correctness.\u00E2\u0080\u009D663 Similarly, being purportedly deferential yet instead of canvassing the range of possible outcomes, displaying an intent from the outset to decide whether the decision was correct.664 Separately, flawed deference is indicated by a lack of \u00E2\u0080\u009Cdiscussion as to whether the panel\u00E2\u0080\u0099s decision was intelligible, justifiable and transparent.\u00E2\u0080\u009D 665 As well as, omission of \u00E2\u0080\u009Cdiscussion as to whether panel\u00E2\u0080\u0099s discussion fell within a range of outcomes.\u00E2\u0080\u009D666 In summary, if there are critical features that betray a result of a reasonableness review being tantamount to correctness, these might constitute a reviewer effectively re-litigating the issue before the administrative decision maker and indicating an agreement or disagreement with the decision.667 Doing deference?: Newfoundland Nurses\u00E2\u0080\u0099 adherence to the Dunsmuir test and Woolley criteria In Newfoundland Nurses, after reviewing the facts, the parties\u00E2\u0080\u0099 arguments, provisions of the applicable collective agreement and applicable interpretative principles, the SCC concluded that there was a reasonable basis for the arbitrator\u00E2\u0080\u0099s conclusion, based on a plain reading of the collective agreement. The SCC found succinctly that the arbitrator\u00E2\u0080\u0099s reasons showed the arbitrator \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0662 id at para 4. 663 ibid. Emphasis added. 664 Example from Calgary (City of) v. Alberta (Municipal Government Board) 2008 ABCA 187 cited in Woolley, supra note 615 at para 43. 665 Woolley, supra note 615 at para 44. 666 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84 cited in Woolley, supra note 615 at para 44. 667 id at para 5. \t \u00C2\u00A0\t \u00C2\u00A0 190\t \u00C2\u00A0was \u00E2\u0080\u009Calive to the question at issue and came to a result well within the range of reasonable outcomes.\u00E2\u0080\u009D668 Applying the Newfoundland Nurses analysis to the \u00E2\u0080\u009CWoolley indicia,\u00E2\u0080\u009D the SCC\u00E2\u0080\u0099s approach is arguably a good example of \u00E2\u0080\u009Cdoing deference,\u00E2\u0080\u009D as it abstains from re-litigating the issue, seems to focus on the more general question of whether the decision may be rationally supported by the governing legislation,669 declines from re-weighing the inputs, and refrains from imposing its own view of matters or commenting upon whether it agreed with the administrative decision. Moreover, consistent with the Dunsmuir test, it draws attention to justification, transparency and intelligibility within the decision making process while also stating that the result falls within the range of reasonable outcomes, albeit that it does not comment upon what such outcomes are. Degree of deference implicit in Garson JA\u00E2\u0080\u0099s analysis in West Moberly Testing Garson JA\u00E2\u0080\u0099s application against the Dunsmuir test, what subsequent cases have suggested as to its application and what academic commentary indicates as to how it ought to apply, Garson JA details what she perceives as several similarities between the consultation processes that occurred in Taku and by MEMPR respectively. These include: the length of time consultation consumed, the number of meetings between the project proponent and the First Nation, the engagement of consultants by the proponent to undertake expert studies, and the adoption of mitigation strategies into the terms and conditions of certification. Based upon these perceived similarities, Garson JA concludes \u00E2\u0080\u009Cthe consultation in the present case was comparable to that \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0668 Newfoundland Nurses at para 26. 669 Woolley, supra note 615 at para 47. \t \u00C2\u00A0\t \u00C2\u00A0 191\t \u00C2\u00A0undertaken in Taku in all of the above mentioned respects.\u00E2\u0080\u009D670 I note that in doing so, Garson JA was seemingly not re-deciding the issue, but merely noting the consultation was \u00E2\u0080\u009Ccomparable.\u00E2\u0080\u009D In addition to these commonalities, Garson JA elaborates at length on what she considers to be an extensive record of consultation apparent from the evidentiary record.671 For example, she notes the \u00E2\u0080\u009CMEMPR Considerations attempts to quantify the adverse effects of FCC\u00E2\u0080\u0099s applications on Caribou generally and on West Moberly First Nation\u00E2\u0080\u0099s treaty right specifically.\u00E2\u0080\u009D672 It determines that there are 1599 Caribou within Treaty 8 Territory. Such extensive record of consultation, as noted above, forms part of the evidence for the MEMPR position. Moreover, it evidences respectful attention to the reasons offered in support of the MEMPR decision, which is consistent with what deference, as the governing consideration of the reasonableness standard, demands.673 I have earlier critiqued Garson JA for having concluded that the time expended on consultation was a consideration determinative of its reasonableness. For example, she observes that after the final consultation meeting of 12 August 2009: It was evident that by this time a decision had to be made... After years of consultation in which the competing interests were fully explored, \u00E2\u0080\u009Csomebody [had] to bring consultation to an end and weigh up the respective interests: Beckman at [84] The Statutory Decision Makers did just that\u00E2\u0080\u00A6 They made their decisions to approve the permits on the basis of the generality of the treaty right in question, limited impact of the proposed permits on that right and incorporation of accommodation and mitigation measures into the project.674 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0670 West Moberly at para 260. Emphasis added. 671 id at para 263. 672 id at para 273. 673 David Dyzenhaus \u00E2\u0080\u009CThe Politics of Deference: Judicial Review and Democracy\u00E2\u0080\u009D, in Michael Taggart, ed., The Province of Administrative Law ((Oxford [England] : Hart Publishing, 1997) at 286. Cited in Dunsmuir at para 48. 674 West Moberly at para 280. Emphases added. \t \u00C2\u00A0\t \u00C2\u00A0 192\t \u00C2\u00A0Such is clear delineation of the evidence upon which MEMPR made their decision. Earlier I have commented that Garson JA neglected to examine in any detail the consequences of her finding on the petitioners\u00E2\u0080\u0099 rights.675 She merely appends to her finding the following: \u00E2\u0080\u009Cit is true that the outcome of the consultation process was not that which West Moberly First Nation desired. But it cannot be said that the outcome, given all the factors listed by the decision makers, was unreasonable.\u00E2\u0080\u009D676 I faulted her for the brevity of application. However, if one follows Woolley\u00E2\u0080\u0099s guidance, that same brevity is arguably indicative of the reviewer, that is, Garson JA, \u00E2\u0080\u009Cnot being more intrusive than this test contemplates.\u00E2\u0080\u009D677 While Garson JA may have expended several paragraphs noting the evidence upon which the statutory decision makers based their decision, she was very brief in her application. Based on Woolley\u00E2\u0080\u0099s indicia of proficient and flawed applications of deference, Garson JA\u00E2\u0080\u0099s analysis arguably ticks many of the \u00E2\u0080\u009Cproficient boxes.\u00E2\u0080\u009D It evidences a \u00E2\u0080\u009Crelatively short length\u00E2\u0080\u00A6 of application of the reasonableness standard to the impugned decision\u00E2\u0080\u00A6 finding that\u00E2\u0080\u00A6 the decision falls within a range of outcomes\u00E2\u0080\u009D678 and, \u00E2\u0080\u009Cthat there was evidence to support the decision.\u00E2\u0080\u009D679 Moreover, I think it is fair to say that Garson JA resisted imposing her own view of matters,680 did not deliberate with whether she agreed with the administrative decision, and did not re-litigate the issue.681 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0675 See at page 145 in Chapter 4 above. 676 West Moberly at para 286. Emphasis added. 677 Woolley, supra note 615 at para 5. 678 id at para 45. 679 ibid. 680 id at para 40. 681 id at para 42. \t \u00C2\u00A0\t \u00C2\u00A0 193\t \u00C2\u00A0Having satisfied many of the Woolley criteria, I turn to the actual test in Dunsmuir. With respect to the first process limb, namely the \u00E2\u0080\u009Cjustification, transparency and intelligibility\u00E2\u0080\u009D within the decision making process, Garson JA\u00E2\u0080\u0099s delineation of the evidence upon which the statutory decision makers based their decision, evidences transparency and justification within the decision making process. Moreover, again consistent with what deference in the context of the reasonableness standard demands, it indicates that she gave \u00E2\u0080\u009Cdue consideration to the determinations of decision makers.\u00E2\u0080\u009D682 Her analysis is weighted heavily towards process. However, following Newfoundland Nurses\u00E2\u0080\u0099s calling for a [more] \u00E2\u0080\u009Corganic approach,\u00E2\u0080\u009D683 it is arguably not problematic that there is ostensibly, not equal weight awarded to both process and outcome limbs within a reviewer\u00E2\u0080\u0099s analysis. Secondly, in relation to the outcome limb, or the substance of the decision, namely whether, in substance, \u00E2\u0080\u009Cthe decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law,\u00E2\u0080\u009D684 Garson JA states that the decision falls within the range of reasonable outcomes, but could possibly be faulted for not identifying or commenting upon what such range would be. Notably, the decision lacks a detailed exegesis as to why it is also correct.685 Garson JA overtly declares that the decision could not be reviewed on a correctness standard.686 However, in its substance her approach is also not tantamount to having applied a correctness standard. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0682 Dunsmuir at para 49. 683 Newfoundland Nurses at para 14. 684 Dunsmuir at para 47. 685 Woolley, supra note 615 at para 46. 686 West Moberly at para 198. \t \u00C2\u00A0\t \u00C2\u00A0 194\t \u00C2\u00A0Finally, consistent with Haida, which has the authoritative strength of commenting specifically on the substantive legal question of the adequacy of consultation and not decision making more generally, and for this reason is arguably more useful a guide than guidance in relation to substantive judicial review more generally which Dunsmuir, Newfoundland Nurses and related cases provide, Garson JA\u00E2\u0080\u0099s focus is on process. Moreover, it arguably achieves \u00E2\u0080\u009Cnot perfection, but reasonableness.\u00E2\u0080\u009D687 Conclusion If we follow what Newfoundland Nurses seems to say in relation to the Dunsmuir test, that it is a more organic approach with a simplifying intention, McLaughlin J in Haida, and to assist our understanding in the event of this uncertainty, academic commentary as to the application of the reasonableness standard, which has the benefit of deriving from detailed analysis of many cases, there does not appear to be much wrong with Garson JA\u00E2\u0080\u0099s analysis. Garson JA may well have been correct in law. Notably, such was picked up on by the applicants who sought leave to appeal to the SCC from the decision of the Court of Appeal of British Columbia.688 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0687 Haida at para 62. 688 While British Columbia did not articulate the argument I have presented or set out a similar analysis in relation to \u00E2\u0080\u009Cdoing deference,\u00E2\u0080\u009D it argued in its leave to appeal submissions, that Garson JA reached the right conclusion in finding the decision of MEMPR to be reasonable. See Her Majesty the Queen in Right of British Columbia as represented by Al Hoffman Chief Inspector of Mines, Victor Koyanagi Inspector of Mines, and Dale Morgan, District Manager Peace Forest District (Applicants) and Chief Roland Wilson on his own behalf and on behalf of all the members of the West Moberly First Nations and the West Moberly First Nations and First Coal Corporation (Respondents) and First Coal Corporation (Respondent) and Her Majesty the Queen in Right of the Province of Alberta, Grand Council of Treaty 3, and Treaty 8 First Nations of Alberta (Intervenors) (Application for Leave to Appeal of the Applicants, Her Majesty the Queen in Right of British Columbia as represented by Al Hoffman, Chief Inspector of Mines, Victor Koyanagi, Inspector of Mines and Dale Morgan District Manager, Place Forest District) at para 42. \t \u00C2\u00A0\t \u00C2\u00A0 195\t \u00C2\u00A0As a result, we have a situation whereby Garson JA \u00E2\u0080\u0099s reasoning evidences a failure to engage with the Indigenous legal traditions that informed the evidence, and at the same time, her decision appears legally sound. Such result evidences a technical legal impediment to the ability of applicants to have their concerns heard, and equally, for the ability of reviewing adjudicators to take into account those concerns. Moreover, it is worrisome for the direction that the operation of the duty to consult is permitted to move. As I noted at the outset of this discussion, such legal mechanics permit a situation whereby ostensible effort on the part of the Crown is good enough, and provided that the process followed is reasonable and that both parties are working together, whether or not rights and interests are realized and protected is of secondary importance. Moreover, as the decisions in Taku and West Moberly attest, we are seeing a trend in the Supreme Court of Canada towards concern with the adequacy of process, which is often proven statistically by the amount of time expended in consultation,689 as opposed to the outcome attained by this process. That is, emphasis is being placed on what I have termed \u00E2\u0080\u009Cnumerical compliance,\u00E2\u0080\u009D with insufficient attention to the substance of communications.690 Pursuant to such trend as I have also alerted, it does not matter so much what transpires at consultation meetings as it does how many meetings are held, how many consultants are engaged and the like. In short, what matters is how much ostensible effort is shown. Applicants for judicial review are at the mercy of the legal ingredients governing the duty to consult\u00E2\u0080\u0099s operation whereby, adjudged pursuant to the reasonableness standard, to an extent, it is a question of form over substance whereby substance is \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0689 For example, the 3.5 year consultation process in Taku, and Garson J\u00E2\u0080\u0099s similar approach in West Moberly at para 273. 690 A recent decision of the Supreme Court of British Columbia affirms this focus on process above and instead of outcomes. See Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2014 BCSC 568 at para 200. \t \u00C2\u00A0\t \u00C2\u00A0 196\t \u00C2\u00A0to a degree, irrelevant.691 Applicants cannot require inquiry into the substance of communications. And seemingly, certain topics such as spiritual impact, remain off limits. I suggest that this reality is a long way removed from having achieved meaningful consultation.692 Moreover, from another point of view, this result, namely Garson JA\u00E2\u0080\u0099s decision, also illustrates what administrative decision makers can get away with as a consequence of deference being the paramount consideration in the application of the reasonableness standard and the leeway or lenience attributed to a decision maker therein. As Binnie J concisely articulates the dilemma, an administrator acting within his/her discretion \u00E2\u0080\u009Chas the right to be wrong.\u00E2\u0080\u009D693 5.3 Operational limitations Shifting gear once again while remaining within the umbrella of impediments to the task of decision makers being receptive to, respecting and considering Indigenous legal traditions, I move to consider the impact of certain operational realities. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0691 Lawyer Tom Isaac also commented that that is what West Moberly was primarily concerned with when I asked him about this. Tom Isaac, Lee Schmidt, Erin Tully, \u00E2\u0080\u009CThe Duty to Consult\u00E2\u0080\u009D, Seminar hosted by the Indigenous Law Students Society at the University of British Columbia, Faculty of Law, 21 November 2012.\t \u00C2\u00A0692 As part of the general rules of conduct for carrying out consultation, Haida provides, \u00E2\u0080\u009Cin all cases the Honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances.\u00E2\u0080\u009D See Haida at para 41. While my summation is a large leap in analysis, this example of Aboriginal applicants being at the mercy of the legal mechanics of administrative decision making pursuant to the reasonableness standard, is one, perhaps of many, that highlights that the greater effort of achieving multiple legal systems operating simultaneously has many teething problems to work through, which will likely see increasing evolution in the common law as it morphs to accommodate Indigenous legal traditions. 693 Dunsmuir at para 125. \t \u00C2\u00A0\t \u00C2\u00A0 197\t \u00C2\u00A05.3.1 Policy and economics As the Chapter 4 analysis illustrates, the judgments reveal much about the attitudes and approach of the government players towards consultation as well as of the respective judges. Through comparing the consultation process undertaken in Taku with that of the provincial ministries in West Moberly, Garson JA\u00E2\u0080\u0099s decision highlights a recurring tendency on the part of government decision makers to defer at least some First Nations concerns for later consideration, either at the permitting phase, as was the case in Taku, or at a later environmental assessment phase, as was argued in West Moberly. Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550 arose as a result of an application by a proponent mining company (the proponent) to re-open a mine in North Western British Columbia in a pristine area at the confluence of the Taku and Tulsequah Rivers, and, in particular, from access to the mine emerging as an issue in the provincial environmental assessment process (EA). Members of the Taku River Tlingit First Nation (the Taku River Tlingit), who participated in the EA as Project Committee members, objected to the proponent\u00E2\u0080\u0099s plans to build a 160 km access road from the mine through a portion of their traditional territory.694 Through the provincial environmental assessment process, the Taku River Tlingit submitted the road ought not to be approved in the absence of a land use planning strategy and away from the treaty negotiation table. The EA process was unable to address these broader concerns directly.695 The Environmental Assessment Office (EAO) informed the Taku River Tlingit that not all of its concerns could be dealt with at the certification stage or through the EA process, and provided it with assistance in liaising with relevant decision makers and \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0694 Taku at para 3. 695 id at para 12. \t \u00C2\u00A0\t \u00C2\u00A0 198\t \u00C2\u00A0politicians.696 The Taku River Tlingit also expressed interest in jurisdiction to approve permits for the project, revenue sharing and Taku River Tlingit control of the use of the access road by third parties. It was informed by the EAO that these issues exceeded the ambit of the certification process and could only be the subject of later negotiation with the government.697 In light of the concerns voiced by the Taku River Tlingit, the SCC rationalized the ministerial decisions by noting: the \u00E2\u0080\u009Cissuance of a project approval certification does not constitute a comprehensive \u00E2\u0080\u009Cgo-ahead\u00E2\u0080\u009D for all aspects of a project. An extensive \u00E2\u0080\u009Cpermitting\u00E2\u0080\u009D process precedes each aspect of construction, which may involve more detailed substantive and information requirements being placed on the developer.698 In addition, the Recommendations Report made prospective recommendations about what ought to happen at the permit stage, as a condition of certification. The report stated that the proponent would develop more detailed baseline information and analysis at the permit stage, with continued Taku River Tlingit participation, and that adjustments might be required to the road route in response. The Taku River Tlingit lost but the SCC reassured them that \u00E2\u0080\u009Cproject approval certification is simply one stage in the process by which a development moves forward.\u00E2\u0080\u009D699 It emphasised that the consolation for the EA process not being the appropriate vehicle in which to address all of its concerns, was that the further stages to follow, namely the permitting stage or more broadly, treaty negotiations or land use strategy planning, provide scope for their concerns to be addressed.700 This reassurance of future action and opportunities to appease current concerns was repeated on \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0696 id at para 36. 697 id at para 12. 698 id at para 18. Emphasis added. 699 id at para 45. 700 id at para 18. \t \u00C2\u00A0\t \u00C2\u00A0 199\t \u00C2\u00A0several occasions.701 It is questionable whether a future permit application is the appropriate time in which to have the Taku River Tlingit\u00E2\u0080\u0099s concerns voiced and accommodated for several reasons. These include that an Environmental Assessment Certificate (EAC) authorizes development to proceed and if a condition is not obtained at this point, it would be more difficult to obtain later. For certainty and ease of enforcement, it would have been in the interests of the Taku River Tlingit to have all desired conditions attached to the EAC. Moreover, there is a lack of consistency in this decision making approach whereby in one case, Taku, the EA process is deemed an inappropriate venue to address all concerns, and permitting is argued as the preferable location, and subsequently in West Moberly, permitting is argued by MEMPR and decided by Garson JA, to be inappropriate with future EA being preferable.702 What this inconsistency reveals, I think, is an underlying reticence to address the concerns in a holistic way. Given this recurring theme, one can fairly speculate that there may be an overriding policy mandate at least influencing this approach. To illustrate this, and by way of comparison, at the Federal assessment level under the Canadian Environmental Assessment Act (CEAA), the Federal government has previously indicated its mandate for accelerating the EA process and achieving more timely decision-making. In its budget released on 29 March, 2012, it proposed legislative reforms to streamline the environmental review process for major industrial projects, in response to what it perceived as, the increasing use of the regulatory review process to delay development.703 Similarly, it acknowledged that the current process is often triggered by small, low-risk projects, which divert resources from major projects that have a higher likelihood of environmental impact. Shrouded in the rhetoric of streamlining the assessment process so as to \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0701 See Taku at paras 12, 18, 36, 46. 702 See extract from MEMPR\u00E2\u0080\u0099s \u00E2\u0080\u009CConsiderations to Date\u00E2\u0080\u009D extracted in West Moberly at para 41. 703 Blake, Cassels & Graydon LLP, Canada's Natural Resources Paramount in 2012 Federal Budget, 3 April 2012, online: at page 1. \t \u00C2\u00A0\t \u00C2\u00A0 200\t \u00C2\u00A0increase certainty for proponents, make it easier to navigate for proponents and investors, and to reduce federal-provincial duplication, so as ultimately to encourage greater investment and create jobs, the determinative consideration seems to be what is good for the economy. For example, upon introducing the budget to the House of Commons, Finance Minister Jim Flaherty recognized that \u00E2\u0080\u009CCanada\u00E2\u0080\u0099s energy and natural resources are massive assets to our country in the global economy.\u00E2\u0080\u009D704 Changes, including the streamlined regulatory approach, are \u00E2\u0080\u009Cintended to capitalize on these assets.\u00E2\u0080\u009D The goal of the streamlined regulatory approach is \u00E2\u0080\u009Cone project, one review, completed in a clearly defined time period.\u00E2\u0080\u009D705 Four specific proposals support the achievement of this goal. These include capping time limits for certain categories of projects,706 as well as reducing duplication in assessment between the federal and provincial arenas, by allowing provincial environmental assessments to be substituted for federal assessments, and for decision-making to be transferred between federal departments and to other jurisdictions.707 The economic thrust of the measures suggests much about the Federal Government\u00E2\u0080\u0099s attitude towards the aims of the EA process, which are meant to promote a healthy economy and healthy environment.708 I wonder whether a similar policy agenda at the provincial level influenced the approach of ministries such as MEMPR in West Moberly and precipitated a perceived need to make a timely decision, albeit with not all issues addressed, rather than addressing all issues in a \u00E2\u0080\u009Cone stop shop\u00E2\u0080\u009D approach, which would inevitably have taken longer. I do not think such speculation is that far fetched. I note for example that in the more recent case Louis, MOFR acknowledged the influence of economic considerations in truncating its consultation and decision making process. I have \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0704 ibid. 705 ibid. 706 For example, 12 months for standard environmental assessments. \t \u00C2\u00A0707 Blake, Cassels & Graydon LLP, Canada's Natural Resources Paramount in 2012 Federal Budget, 3 April 2012, online: at page 1. 708 See Section 4 (1) CEAA; \t \u00C2\u00A0\t \u00C2\u00A0 201\t \u00C2\u00A0narrated the facts above.709 In relation to a permit that was not the subject of the judicial review application, but one antecedent to and which was necessary for, clearing in advance of the subject permit application to MEMPR, MEMPR acknowledged that it reduced the duration of consultation with the Stellat\u00E2\u0080\u0099en for this permit. The District Manager for the Ministry wrote to the Stellat\u00E2\u0080\u0099en, saying: Of special consideration, please note that it is essential to the Endako Mine to be able to proceed with the development of the 6.2 hectare section as soon as possible to support the commencement of their $373.6 million mill expansion project. Although this time frame does not meet the 60 day Response Period as set out within the Forest and Range Agreement between the Ministry of Forests and Range and your First Nation, I am considering approving this particular 6.2 hectare area no later than March 20, 2008 [sic- this should be April 20, 2008] as it is essential to the Endako Mine\u00E2\u0080\u0099s substantial expansion project and the potential impacts to the economy of the local communities.710 Justice Groberman noticed this violation of the Forest and Range Agreement. However, he held he was not required to rule upon this, as the permit to which it attached was not the permit the subject of the judicial review application. It was not the impugned decision. Groberman J excused himself from consideration of breach of the Forest and Range Agreement thus: I express no view as to whether the early permits issued by the Ministry of Forests would have been vulnerable to challenge had the Stellat\u00E2\u0080\u0099en brought timely judicial review proceedings in respect of them. I do express some concern that the initial cutting permit (which covered 6.2 ha. of immature forest) was issued in apparent contravention of the Crown\u00E2\u0080\u0099s Forest and Range Agreement with the Stellat\u00E2\u0080\u0099en. Nonetheless, whether or not the process for issuing the early Forest permits was suspect, it did not serve to taint the later and separate processes that are at issue in the current appeal.711 \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0709 See Chapter 4 at 4.1 710 Louis at para 23. Emphasis added. 711 id at para 114. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 202\t \u00C2\u00A0As such what I have suspected influenced decision making in West Moberly appears to be confirmed in Louis. Namely, the role that implementation of government policy and economic considerations can play in impacting the ability of First Nation concerns to be heard and decision makers\u00E2\u0080\u0099 ability to take these into account. West Moberly and Louis illustrate two such operational trends: the deferral of consultation and thus the opportunity to be heard for later consideration, and reduction in the duration of consultation. 5.3.2 A divided Crown and impact upon the honour of the Crown The reality of the Crown constituting multiple actors, and the impact of this upon the Honour of the Crown is a further operational factor that impacts upon both the feasibility of decision makers hearing First Nation concerns, and First Nations\u00E2\u0080\u0099 ability to communicate these. Neither the majority and dissent, nor the trial judgments in West Moberly said much about the principle of the honour of the Crown.712 Still the petitioners relied upon it to bolster their position.713 Given that the honour of the Crown is always at stake in the Crown\u00E2\u0080\u0099s dealings with Aboriginal people,714 the following comments are worth considering. The evidence, highlighted particularly in Garson JA\u00E2\u0080\u0099s judgment, revealed that the positions of the differing government ministries were inconsistent and that the Crown was not uniform in its approach to consultation. The evidence revealed that on the one hand, the environmental scientists and biologists for the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0712 As I have noted at page 137, Garson JA evokes the principle of the Honour of the Crown and cites from Taku, the requirement \u00E2\u0080\u009Cthat the Crown must act honourably in accordance with its historical and future relationship with the Aboriginal peoples in question. However, it is unclear what role the Honour of the Crown plays in her reasoning, and whether she pays anything more than lip service to it. 713 The petitioners submitted the Williamson J correctly held that the proposed accommodation did not honorably balance the rights and interests at stake. See West Moberly at para 11. It was also agitated in support of the delegation issue. 714 Haida at para 16. \t \u00C2\u00A0\t \u00C2\u00A0 203\t \u00C2\u00A0MOE and MOFR were advocating the urgent need for caribou recovery in the face of likely extirpation. At the same time, government employees of a different ministry--MEMPR--working on the same intended project, having issued a stop work order following the investigation of illegal clearing of the Spine Road, proceeded to approve a permit that included development within a portion of the area that was illegally cleared. Further, MEMPR subsequently considered reclamation of the illegally cleared area to be an accommodation for the purposes of the duty to consult. How can one reconcile the discrepancies between the approaches of the ministries? It seems that at least in some respects, they were at loggerheads. Aside from any issue about the message this might send to a future developer about the ability to rationalize reclaimed illegally cleared land as a form of accommodation, and the lack of deterrence implicit in this, it seems fair to say that the polarity in perspectives taken by the government agencies working on different issues (ecological and land clearing), but related to the same project, evidences a lack of cohesion in the operation of the Crown as a decision maker and trustee of the honour of the Crown. This reality has certain implications for First Nations seeking to consult effectively with the Crown and to have their concerns heard, as well as for the Crown as trustee of the honour of the Crown. What obligation do divisions within the Crown, which itself has the legal responsibility for fulfillment of the duty to consult, have to work together to reach a uniform position? Can we say that, on occasion at least, the Crown is not a single actor, but constitutes multiple actors such that there are multiple actors at the negotiating table with whom the First Nations must consult? How does one negotiate and consult with the Crown when this actor constitutes multiple entities? \t \u00C2\u00A0\t \u00C2\u00A0 204\t \u00C2\u00A05.4 Conclusion In this chapter I examined impediments to the capacity of State based decision makers recognising, respecting and considering Indigenous legal traditions based upon my observations from the decision making that instigated and occurred within the Caribou cases. I have divided these constraints into three categories: cultural, technical legal, and operational factors. Quantitatively I have apportioned differing lengths to the discussion of these constraints. This reflects less my perception of the gravity of the problems that these factors present within the task of incorporating Indigenous legal traditions into State based decision making, and is more a function of the factors that most interested me and which have perhaps received less scholarly attention. I commenced by discussing cultural untranslatability, a term I borrow from Sophie McCall715 which I use in reference to the challenge of western trained adjudicators and decision makers comprehending and accommodating, multiple worldviews. I examined several examples deriving from the Caribou cases where the clash of worldviews between Dunne Za and Canadian legal systems is apparent. These include the contrast between Dunne Za land use law and contemporary land use planning regimes. A failure to appreciate and be sensitive to the mechanics of the Dunne Za traditional seasonal round with its substantive and procedural components, many of which defy those of State imposed land use planning regimes, yields a risk that aspects of hunting decisions made pursuant to the seasonal round, are dismissed as \u00E2\u0080\u009Chaphazard, irrational and improvident.\u00E2\u0080\u009D716 Moreover, there is a risk that the legal system within which this decision making is made is neither acknowledged as nor given the weight of, a legal system. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0715 McCall, supra note 540 at 70. 716 Brody, supra note 554 at 174. \t \u00C2\u00A0\t \u00C2\u00A0 205\t \u00C2\u00A0This potential result and illustration of cultural untranslatability played out, arises from a conflict between Dunne Za decision making methodologies and those of Canadian administrative law. A Canadian decision maker such as an administrative tribunal or judge, might struggle with comprehending decision making made pursuant to seemingly vague, uncertain and intangible variables, such as senses of weather and rightness,717 and similarly, with decision making that draws upon spiritual knowledge. Recent academic critique of traditional knowledge attests that mis-comprehensions arising from similar cultural chasms have confounded other critics. Moreover, previous judicial decision making within a dispute featuring some of the same Dunne Za legal traditions as that which appear in the Caribou cases, suggests that a refusal to acknowledge aspects of Indigenous law as deriving from legitimate legal systems, is a genuine risk. A particular symptom of cultural untranslatability that I examined is the challenge of seeking decision makers to recognise oral histories as legitimate sources of law, and to acknowledge legitimacy in legal principles sourced in oral histories. This is especially pertinent to the Dunne Za for whom narrative is an important source of law, and who experience their lives as stories.718 I identified a risk that this source of law will be equated with myth and be seen as fantastic and unreal and devalued as having less or no legal weight. This risk is arguably a product of assuming a non Dunne Za epistemology that falsely dichotomises history and historical method, from myth and experience, rendering one a legitimate source of authority, and the other, fantastic. Dunne Za \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0717 id at 37. 718 Ridington, supra note 576 at xiii. See also Robin Ridington and Jillian Ridington in collaboration with Elders of the Dane-Zaa First Nations, Where Happiness Dwells: a history of the Dane-Zaa First Nations, (Vancouver: UBC Press, 2013) at 2 which provides, \u00E2\u0080\u009Cto understand Dane Zaa history and culture, one must understand Dane-Zaa storytelling.\u00E2\u0080\u009D \t \u00C2\u00A0\t \u00C2\u00A0 206\t \u00C2\u00A0epistemologies, whose intricacies include the fact that \u00E2\u0080\u009Cdreams and visions validate and explain the past in terms of present experience\u00E2\u0080\u009D719 must be appreciated in order to comprehend the significance of oral histories as legitimate sources of law. While I am amenable to the necessary cognitive transition, there is a risk that decision makers who are not also trained in anthropology and amenable to the need to appreciate multiple epistemologies, will not be able to embrace such traditions as law. These manifestations of cultural untranslatability affirm it is a constraint to the capacity of decision makers incorporating Indigenous legal traditions into their decision making to which there is no easy solution. Encouragement such as the former Chief Justice\u00E2\u0080\u0099s duty to learn is positive. However, in the context of the implementation of the duty to consult, I would extend this obligation to all actors in the administrative decision making apparatus, and thereby, all players capable of influencing outcomes from a decision\u00E2\u0080\u0099s inception. This is particularly so owing to the legal mechanics at play in the review of the adequacy of consultation. I spent the largest space examining these legal mechanics and the consequences they permit for several reasons. I have had some involvement with Ministerial decision making and the chain of legal advice and policy work that culminates in it. This was within an applied administrative law capacity which lacked differing standards of judicial review. Owing to my insights from this practical experience, the effect of these differing standards particularly interests me, as does the notion of extending the duty to learn to all those capable of influencing consultation outcomes, including the many employees who \u00E2\u0080\u009Creside within the bowels and recesses of government \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0719 id at 12. \t \u00C2\u00A0\t \u00C2\u00A0 207\t \u00C2\u00A0departments\u00E2\u0080\u009D720 and whose role in working towards a ministerial decision, is akin to that of cogs in the wheel of the administrative decision making apparatus. In addition to my personal interest, what I have learned of the reasonableness standard of review and the results that its application permits, emphasises the importance of the role of these many government officers and administrative decision makers in the larger task of seeking that Indigenous law infiltrates and influences, state based decision making. As I articulate in support of the duty to learn extending its reach to apply to administrative decision makers, if the duty does not apply at the stage of consultation with Aboriginal peoples, upon judicial review, any failure to learn could well be gotten away with by virtue of the deference awarded to the administrative decision maker. I have explained in detail the undesirable results that application of the reasonableness standard permits. \u00E2\u0080\u009CDoing deference\u00E2\u0080\u009D721 to administrative decision making permits consultation outcomes whereby ostensible effort on the part of the Crown is good enough, and provided that both parties are working together, whether or not rights and interests are protected is of secondary importance. Recent judgments evidence a trend in judicial review towards concern with the adequacy of process. Adequacy is often proven statistically by the amount of time expended on consultation instead of the outcome attained in this process. Emphasis is being placed on what I have termed \u00E2\u0080\u009Cnumerical compliance\u00E2\u0080\u009D with insufficient attention to the substance of communications. Pursuant to such trend, it does not matter so much what transpires at consultation meetings, as how much apparent effort is shown. The adequacy of consultation has largely become a question of form over substance. Applicants challenging Crown decision making cannot require inquiry into the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0720 Dunsmuir at para 15. 721 Woolley, supra note 615 at para 37. \t \u00C2\u00A0\t \u00C2\u00A0 208\t \u00C2\u00A0substance of communications and seemingly certain topics such as spiritual impact, remain off limits. Finally this chapter examined various pragmatic realities of the operation of the duty to consult which constrain the effort to have Indigenous law recognised, respected and considered. This segment discusses policy and economic influences as well as the reality of the Crown being divided. The focus on the role of government policy and economic imperatives is particularly pertinent. Regardless of what the law requires, government policy can bear an influence in consultation decision making. The effort to incorporate Indigenous legal traditions into the common law in the context of the duty to consult, cannot focus purely on the legal profession, academics and the judiciary. The administrative arm of government and those that implement law, have critical roles in achieving consultation outcomes. \t \u00C2\u00A0\t \u00C2\u00A0 209\t \u00C2\u00A06. Conclusion In this thesis I have analyzed the extent to which Dunne Za legal traditions were recognised and respected by, and substantively influenced, the reasoning of successive decision makers in the Caribou cases. I have also alluded to the proviso that such an evaluation contains a critical further step: the need to consider the degree to which these legal traditions were submitted and articulated as legal traditions as distinct from being framed as values or similar. While there is ample impetus from multiple players within the Canadian legal landscape, including the judiciary, Bar Association and academia, for engagement with Indigenous legal traditions, analysis of the extent to which this is occurring should not ignore the fact that the end product of the extent of a decision maker\u00E2\u0080\u0099s engagement with these traditions does not merely result from a decision maker\u00E2\u0080\u0099s agency. Rather, the portrayers of Indigenous legal traditions too have a role. One consideration for the portrayers of Indigenous legal traditions, namely Aboriginal bands who in this context are litigating breach of the duty to consult, is, are they presenting their legal traditions well enough as legal traditions, as distinct from for example, values or similar? I shall illustrate this by way of example. In relation to the traditional seasonal round, the petitioners in West Moberly submitted the two decisions of the Ministry of Energy, Mines and Petroleum Resources (MEMPR) were made without proper consideration of their right to hunt caribou in the area affected as part of the traditional seasonal round. In doing so, while they specifically pleaded impact on their treaty protected right and Indigenous law, namely the right to hunt pursuant to the seasonal round, the seasonal round was not overtly declared to be or identified as, Indigenous law. Further, in relation to what I have deduced as the legal principle of respect, the petitioners\u00E2\u0080\u0099 submissions to MEMPR provided: \t \u00C2\u00A0\t \u00C2\u00A0 210\t \u00C2\u00A0Like our forefathers, we still hold traditional values as Mountain Dunne Za peoples. These include, viewing animals like people, respect for animals and their habitat, and an ethic not to waste plants and animals.722 On its face it appears that the principle of respect deriving from this segment is expressed as a value as distinct from a legal tradition. Perhaps they are one and the same to a Dunne Za member. However, I suggest such values ought to be specifically identified as Indigenous laws, lest they are dismissed by a non-Dunne Za decision maker, as having the less weighty status of evidence and thereby become merely one of several factors for consideration in the decision making calculus. Owing to my Australian common law training and litigation experience, which did not include consideration of Indigenous legal traditions or Legal Pluralism, it strikes me as somewhat judicially activist for a judge to make rulings purporting to uphold Indigenous legal traditions if these are not submitted as such. Such a judge might be criticized for elevating values and the like to the status of legal traditions. The portrayers of Indigenous legal traditions who seek to have their traditions recognised and considered, must identify their legal traditions as Indigenous laws. I have not extensively analysed the degree to which the petitioners did this in West Moberly. Accordingly, I have reached conclusions noting that a thorough analysis of the extent to which the decision makers recognised, respected and considered the legal traditions of the Dunne Za, ought to consider the extent to which these traditions were presented as legal traditions. I identified several Dunne Za legal traditions as being interwoven throughout the petitioners\u00E2\u0080\u0099 submissions and which arguably incited the Caribou cases. Chief of these is the traditional seasonal round. Brody\u00E2\u0080\u0099s detailed anthropological account, which complements the more truncated \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0722 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009) at 65. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 211\t \u00C2\u00A0submissions, suggests the seasonal round is a means of obtaining food for the Beaver Indians and, perhaps most significantly, that it may be characterized as a land management regime that is governed by conservation objectives. It respects the ability of the land to produce what is needed, without upsetting the balance or order of the Dunne Za\u00E2\u0080\u0099s relationship with the non human world. From my experience in land use planning, I suggested that the seasonal round\u00E2\u0080\u0099s malleability defies the relative rigidity of non-Dunne Za land use planning regimes and other legal means for regulating land use. Its multiple constituent elements and characteristics suggest it would be wrong to dismiss it merely as comparable with a land use planning regime, delineating various zones in which certain uses are permissible. In particular, the traditional knowledge informing the seasonal round is rich in its complexity and contains variables that defy an anthropocentric epistemology and a western comprehension of knowledge. Although the Dunne Za might not characterize it as such, I identified both substantive and procedural components to decision making pursuant to the traditional seasonal round. In substance, this decision making is based on traditional knowledge. Hunting decisions derive from \u00E2\u0080\u009Ca massive body of information\u00E2\u0080\u009D723 from the land and natural world. Epistemologically, this involves a very different decision making methodology or process. In their decision-making, hunters are guided by senses of weather and rightness. Arguably vague and uncertain and difficult to assess with finality, such are the process components that inform the operation of hunting pursuant to the traditional seasonal round. However, concluding that the seasonal round is based on traditional knowledge is an inadequate assessment. Rather, intricacies deriving from Ridington\u00E2\u0080\u0099s detailed work such that the revelation of the animal\u00E2\u0080\u0099s location through dreaming is a requisite for a hunt\u00E2\u0080\u0099s \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0723 Hugh Brody, Maps and Dreams: Indians and the British Columbia Frontier (Vancouver: Douglas & McIntyre 1981) at 221. \t \u00C2\u00A0\t \u00C2\u00A0 212\t \u00C2\u00A0successful completion, affirm the importance of knowledge to the operation of the seasonal round. The seasonal round is not just based on traditional knowledge; traditional knowledge is required. The West Moberly First Nation\u00E2\u0080\u0099s moratorium on hunting caribou that it implemented in the 1970s and which remains in force today, lacks the complexity of the seasonal round. It prohibits the hunting of caribou in order to permit rejuvenation of the population to a level at which it would be sustainable and thereby, safe to hunt. The third Dunne Za law I examined is the principle of respect as a discrete legal principle. I suggested this principle manifests in practices such as the sustainable use of hunted animals. Finally, I examined law contained within oral histories of the Dunne Za. I suggested that much of this law reinforces and provides the authority for the petitioners\u00E2\u0080\u0099 submissions. In evaluating the extent to which decision makers engaged with Dunne Za law, I sought to decipher the governing rationale of the decision. Was the decision maker recognising Indigenous law? Was s/he balancing economic and other interests? How did each decision maker see these legal traditions when they were brought before it. Were they acknowledged as sources of legitimate legal authority? To what extent did these decision makers incorporate notions of Indigenous law into their decision making by recognizing and confirming or affirming a role for it in the decision making process? In relation to the traditional seasonal round, the majority in West Moberly upheld the trial judge\u00E2\u0080\u0099s finding that the treaty right was defined as a right to hunt according to the traditional seasonal round and that the province\u00E2\u0080\u0099s consultation was inadequate. Given that treaties contain Indigenous legal traditions, by acknowledging the Dunne Za\u00E2\u0080\u0099s \u00E2\u0080\u009Ctraditional patterns of activity and \t \u00C2\u00A0\t \u00C2\u00A0 213\t \u00C2\u00A0occupation,\u00E2\u0080\u009D724 Finch CJ explicitly acknowledged and respected the existence of the Indigenous law that informs the content of the treaty right. He recognized, and his decision making was influenced by, the value to the community of hunting caribou. By explicitly acknowledging both the seasonal round and the West Moberly First Nation\u00E2\u0080\u0099s moratorium, Finch CJ\u00E2\u0080\u0099s findings constitute strong recognition of the Indigenous legal traditions that were before him in evidence. His respect for these Indigenous laws, and the influence they had on his reasoning, contrasts with the reasoning approach of the MEMPR and also of Garson JA, whose approaches were heavily influenced by the \u00E2\u0080\u009Cmodern day economic and cultural environment.\u00E2\u0080\u009D725 In its consultation, the MEMPR failed to genuinely engage with the substance of the petitioners\u00E2\u0080\u0099 position,726 which was infused with impact on Dunne Za law. The MEMPR participated in a process that provided space for Indigenous law to potentially be articulated and considered by the statutory decision makers. Yet this consultation was in form only owing to its neglect of the substance of the petitioner\u00E2\u0080\u0099s position. The statutory decision maker was neither sensitive nor attentive to the petitioners\u00E2\u0080\u0099 Indigenous law as having any role in its decision making process relating to the permit applications. Further, by means of its weighing of respective interests, which ignored the petitioners\u00E2\u0080\u0099 constitutionally protected hunting right and the fact that the petitioners\u00E2\u0080\u0099 interests were not merely interests equivalent to those of the proponent\u00E2\u0080\u0099s mineral tenure, the MEMPR did not acknowledge the seasonal round and hunting right as having the status and weight of law. Rather, the hunting right was an interest that was capable of being trumped by competing economic interests. The \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0724 West Moberly at para 137. 725 id at para 241. 726 id at para 147. \t \u00C2\u00A0\t \u00C2\u00A0 214\t \u00C2\u00A0petitioners\u00E2\u0080\u0099 interests were also deemed capable of being deferred for later consideration, as distinct from including Indigenous law that must be addressed together with applicable Canadian law and consistent with Canada as a jurisdiction with multiple legal orders. Garson JA\u00E2\u0080\u0099s approach to treaty interpretation ignored the Indigenous law informing the content of the treaty right. In assessing the adequacy of the consultation process, Garson JA affirmed the approach of the statutory decision makers of balancing \u00E2\u0080\u009Cthe competing interests in the context of a modern culture and environment.\u00E2\u0080\u009D727 From Garson JA\u00E2\u0080\u0099s perspective, the petitioners\u00E2\u0080\u0099 \u00E2\u0080\u009Cparticular interest in hunting caribou,\u00E2\u0080\u009D728 was not Indigenous law. Rather, it was given the status and weight of an interest that was capable of being balanced in equal fashion with other interests, such as First Coal Corporation\u00E2\u0080\u0099s mineral tenure. Garson JA\u00E2\u0080\u0099s approach to assessing reasonableness was very much a balancing exercise, which in contrast to Finch CJ\u00E2\u0080\u0099s inclusive balancing approach, which took into account the legal traditions that were at play as legitimate law, seems to have been governed by the \u00E2\u0080\u009Cmodern day economic and cultural environment.\u00E2\u0080\u009D729 \u00E2\u0080\u009CThe context of a modern culture and environment\u00E2\u0080\u009D730 was the determinative influence on her findings. This context was mutually exclusive of Indigenous law. They were competing interests. The omission of consideration of Indigenous law from Garson JA\u00E2\u0080\u0099s reasoning indirectly suggests that Indigenous law does not have a role to play in adjudication within Canada, a legally pluralist state. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0727 id at para 249. 728 id at para 286. 729 id at para 241. 730 id at para 249. \t \u00C2\u00A0\t \u00C2\u00A0 215\t \u00C2\u00A0Beyond recognition of the existence of the seasonal round, the judgments revealed scant appreciation of its significance as a conservation regime and legal mechanism for maintaining balance and order, and as I understand it, as a deliberate and well thought out land use planning and management scheme. There was minimal discussion of its procedural and substantive components. However, these features were largely not submitted as such either. In noting details such as that \u00E2\u0080\u009Chunters followed game\u00E2\u0080\u0099s seasonal migrations and re-distributions based on their knowledge and understanding of animal behaviour,\u00E2\u0080\u009D731 Finch CJ seemed to acknowledge the seasonal round as being an application of traditional knowledge and at least referred to some elements of traditional knowledge. However, the fact that Dunne Za decision making pursuant to the seasonal round is influenced by dreaming and the roles of medicine power and pre-existing relationships with the animal world, was absent from the decision makers\u00E2\u0080\u0099 reasoning. The West Moberly First Nation\u00E2\u0080\u0099s moratorium on hunting caribou was not mentioned in the reasoning of the statutory decision maker and the trial judge. The Chief Justice explicitly identified the moratorium and, in doing so, recognized the value in the community of hunting caribou. From one perspective, this Indigenous law made its way to the majority judgment to an extent.732 The court acknowledged the attempt by the West Moberly First Nation to preserve the caribou population. As Finch CJ narrated, \u00E2\u0080\u009Csince about the 1970s, the West Moberly elders have imposed a ban on their people\u00E2\u0080\u0099s hunting of caribou.\u00E2\u0080\u009D733 Further, \u00E2\u0080\u009Cthe petitioners\u00E2\u0080\u0099 people have done what they could on their own to preserve the herd, by banning their people from hunting caribou for the last 40 years.\u00E2\u0080\u009D734 However, this is the extent of its recognition as an Indigenous law. From another perspective however, it is arguable that the majority decision alone constitutes recognition \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0731 id at para 22. 732 See West Moberly at para 26 and 118. 733 id at para 26. 734 id at para 118. \t \u00C2\u00A0\t \u00C2\u00A0 216\t \u00C2\u00A0of this law within the Indigenous community as the petitioner\u00E2\u0080\u0099s judicial review application was largely incited by the need to uphold the purpose of this law. The third legal tradition I examined was the principle of respect and its resulting practices. This is evident in the sustainable use of hunted animals, and I surmise, in the story of Tumaxale whose incongruous and murderous behaviour yields a denial of assistance from the animal world. This principle was not submitted in any explicit way as an Indigenous law. However, it was contained within the initial submission, which formed part of the evidence. Moreover, the petitioners\u00E2\u0080\u0099 submissions to the Supreme Court of British Columbia also arguably alluded to the principle of respect. For example, they cite West Moberly member Catherine Dokkie as explaining the West Moberly\u00E2\u0080\u0099s unique connection with animals living in its traditional territory, as follows: Our people are closely connected to the land and the animals. We think of \u00E2\u0080\u009Cthe bush\u00E2\u0080\u009D as our playground\u00E2\u0080\u00A6 We have a special relationship with the animals. We protect them. We don\u00E2\u0080\u0099t just do this because we want to eat them. We see them like people. The moose, the grizzly, the caribou: they are all our friends. When a hunter kills an animal, they will often say a prayer or give an offering, because that animal gave up its life to feed us.735 I am not sure to what degree this legal principle pervaded the decision makers\u00E2\u0080\u0099 findings and reasoning. For Williamson J, his dissatisfaction \u00E2\u0080\u009Cthat the Crown reasonably accommodated West Moberly\u00E2\u0080\u0099s concerns about their traditional seasonal round of hunting caribou for food, for cultural reasons, and for the manufacture of practical items,\u00E2\u0080\u009D736 suggests that he acknowledged some of the cultural reasons contained within the initial submission. I have speculated these could possibly \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0735 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Catherine Dokkie) at para 7. Emphases added. 736 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para 17. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 217\t \u00C2\u00A0encompass respect for the caribou. However, this inference seems tenuous. More cogent seems to be Finch CJ\u00E2\u0080\u0099s narration of the factual background, as distinct from a finding, which provides: The Mountain Dunne-Za valued the existence of all species, including Caribou, and treated them and their habitat with respect\u00E2\u0080\u00A6 The people felt and feel a deep connection to the land and all its resources, a connection they describe as spiritual. They regarded the depopulation of the species they hunt as a serious threat to their culture, their identity and their way of life.737 The Chief Judge\u00E2\u0080\u0099s description seems to sustain Catherine Dokkie\u00E2\u0080\u0099s words as to the petitioners\u00E2\u0080\u0099 special relationship with and respect for animals. However, it does not explicitly acknowledge the relationship between humans and non-humans as governed by Indigenous legal principles. Finally, I addressed the remaining legal principles contained within the oral histories. In relation to caribou as active agents in the worldview and order of the Dunne Za, which I speculated but could not specifically identify within the oral histories, the initial submission extracts segments of several myths said to illustrate the significance and role of caribou. In particular, it notes that Goddard J documented caribou in five stories that impart moral lessons, guide appropriate conduct, and serve as spiritual teachings. Beyond the initial submission this law permeated the submissions to the Supreme Court of British Columbia by way of the evidence of anthropologist Dr Wendy Aasen. Dr Aasen deposed: The importance of caribou to the Mountain Dunne-za is demonstrated by its role in worldview, myth, and spirituality. After a review of the literature, I conclude that in addition to entertainment value, caribou myths and stories taught and reinforced appropriate norms, beliefs and codes of conduct. Individual members of the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0737 West Moberly at para 25. Emphasis added. \t \u00C2\u00A0\t \u00C2\u00A0 218\t \u00C2\u00A0Mountain Dunne-za actively sought caribou as a powerful spirit helper, whom, if respected in prescribed ways, was believed to aid a hunter throughout his life.738 The notion of caribou as active agents in the Dunne Za worldview and order, assuming a quasi governance role and separately, as being powerful spirit helpers that aided Dunne Za hunters, is noticeably absent Garson JA\u00E2\u0080\u0099s reasoning. Traces of its recognition permeate Finch CJ\u00E2\u0080\u0099s reasoning. In his findings in relation to the scope of the duty to consult, Finch CJ explicitly acknowledged the importance of caribou to the way of life and cultural identity of the West Moberly First Nation: \u00E2\u0080\u009CCaribou have been an important part of the petitioners\u00E2\u0080\u0099 ancestors way of life and cultural identity, and the petitioners\u00E2\u0080\u0099 people would like to preserve them.\u00E2\u0080\u009D739 Way of life and cultural identity could encompass the role of caribou in the way of life of the West Moberly First Nation. In the effort to gauge any evolution in the extent to which courts were prepared to accept Indigenous legal traditions as law, I examined a decision 26 years prior to West Moberly in which at least some of the same legal traditions were in evidence.740 I concluded that the judge in this case made such minor use of the evidence of the Dunne Za\u00E2\u0080\u0099s way of life (because that was all he thought was warranted to address the issues at hand), that the case was not so useful for this comparative purpose. Nevertheless, I suggested that Addy J\u00E2\u0080\u0099s superficial engagement with the account of the Dunne Za\u00E2\u0080\u0099s way of life in the Apsassin case, starkly contrasted the meticulous attention and inquiring approach of both Williamson J and Finch CJ in the Caribou cases. From another perspective however, Addy J\u00E2\u0080\u0099s methodology resembles Garson JA\u00E2\u0080\u0099s in West Moberly: \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0738 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Affidavit #1 of Wendy Aasen Exhibit \u00E2\u0080\u009CB\u00E2\u0080\u009D) at page 29. Cited in Written Argument of the Petitioners to the Supreme Court of British Columbia at para 56. Emphasis added. 739 West Moberly at para 118. 740 This is the analysis of the Apsassin case, Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) 1987 FCJ 1005 which I discuss in Chapter 4 at 4.5 and also briefly in Chapter 5 at 5.1. \t \u00C2\u00A0\t \u00C2\u00A0 219\t \u00C2\u00A0both adjudicators made minor use of or ignored the Indigenous legal traditions that were before them in evidence. From this perspective, the judgments of both Williamson J and Finch CJ suggest a degree of evolution in judicial decision making. At least some judges are prepared to recognise, respect and consider Indigenous legal traditions. In relation to the capacity for and feasibility of decision makers to engage with Indigenous legal traditions, the tensions I perceived in Kennedy741 and the work of critics such as Frances Widdowson suggest that cultural untranslatability is an impediment to which there is no easy solution. I examined several examples deriving from the Caribou cases where the clash of worldviews between Dunne Za and Canadian legal systems is apparent. Chief of these is the contrast between Dunne Za land use law and contemporary land use planning regimes. A failure to appreciate and be sensitive to the mechanics of the Dunne Za traditional seasonal round with its substantive and procedural components, many of which defy those of state imposed land use planning regimes, yields a risk that aspects of hunting decisions made pursuant to the seasonal round, are dismissed as \u00E2\u0080\u009Chaphazard, irrational and improvident.\u00E2\u0080\u009D742 Moreover, there is a risk that the legal system within which this decision making is made is neither acknowledged as nor given the weight of a legal system. This potential result and illustration of cultural untranslatability played out, arises from a conflict between Dunne Za decision making methodologies and those of Canadian administrative law. A Canadian decision maker such as an administrative tribunal or judge, might struggle with comprehending decision making made pursuant to seemingly vague, \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0741 Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456. See Chapter 1 at 1.1.4. 742 Brody, supra note 723 at 174. \t \u00C2\u00A0\t \u00C2\u00A0 220\t \u00C2\u00A0uncertain and intangible variables such as senses of weather and rightness,743 and similarly, with decision making that draws upon spiritual knowledge. Recent academic critique of traditional knowledge attests that mis-comprehensions arising from similar cultural chasms have confounded other critics. Moreover, previous judicial decision making within a dispute featuring some of the same Dunne Za legal traditions as that which appear in the Caribou cases, suggests that a refusal to acknowledge aspects of Indigenous law as deriving from legitimate legal systems, is a genuine risk. These manifestations of cultural untranslatability affirm it is a constraint on the capacity of decision makers to incorporate Indigenous legal traditions into their decision making that requires attention. Prospectively what implications does this present for the work of decision making and adjudicating? How can these complex cultural impasses be sought to be addressed pragmatically? The challenges I have faced in seeking to comprehend Dunne Za law are not unlike those of various decision makers who are untrained in Indigenous legal traditions, who have no background in a radically different culture, and who are presented with claims emerging from and informed by Indigenous legal traditions, and are tasked with making appropriate use of this body of law. The former Chief Justice\u00E2\u0080\u0099s statement about a Duty to Learn is positive. However, in the context of the implementation of the duty to consult, I advocate extending such an obligation to all actors in the administrative decision making apparatus, and thereby to all players capable of influencing outcomes from a decision\u00E2\u0080\u0099s inception. This is particularly so owing to the effect of the \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0743 id at 37. \t \u00C2\u00A0\t \u00C2\u00A0 221\t \u00C2\u00A0legal mechanics at play in the review of the adequacy of consultation. Yet in common with any legal duty, there is the challenge of its enforcement which proves difficult in practice.744 In relation to administrative decision makers and the officers of various Aboriginal relations branches of ministries involved with consultation with Aboriginal peoples, annual mandatory training in Indigenous legal traditions and coordinated with Aboriginal peoples, is one pragmatic suggestion that seems feasible and worth exploring. Comparable to the accrual of mandatory continuing legal education as a condition of a valid practising certificate for legal practitioners, government ministries could take the initiative to require training in working with and understanding Indigenous legal traditions for those officers involved in consultation with Aboriginal peoples, as an annual condition of their continued employment in this capacity.745 For those tribunal members and judges adjudicating disputes when consultation decisions are contested, the former Chief Justice may be correct that seeking to train the current judiciary is unrealistic and, I infer, futile.746 I take guidance from the jurisdiction with which I am most familiar, namely New South Wales, and the adjudicatory model of the Land and Environment \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0744 I previously worked as a lawyer in the prosecution and compliance legal branch of the City of Sydney Council. We commonly brought civil enforcement proceedings in the Land and Environment Court of NSW as a result of non compliance with conditions of Council development consents, orders and other decisions. Enforcing these types of local government decisions is difficult. I suspect that seeking to enforce a duty to learn upon administrative decision makers and other government officers might well prove unworkable. 745 In my former role as a lawyer within a Government Department, I was encouraged, but not required to complete a one off three day course in Aboriginal Cultural Heritage Awareness training which was taught by an Aboriginal Australian. Training comparable to this and undertaken on a regular basis, which addresses the legal traditions of communities with which officers are working, seems ideal. Native vegetation policy officers with whom I worked were required to be skilled in Landsat imagery and Geographic Information Systems mapping in order to be able to complete their work competently. Those officers working with Aboriginal communities and exposed to Indigenous legal traditions ought to be similarly skilled. 746 The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012) at para 45. \t \u00C2\u00A0\t \u00C2\u00A0 222\t \u00C2\u00A0Court of NSW. The Land and Environment Court frequently teams commissioners of the court who possess specialised knowledge in certain areas, such as in Aboriginal land rights and disputes involving Aboriginal peoples, ecology and town planning amongst other areas of expertise, with judges, in order to resolve disputes that require proficiency with this specialised knowledge and which the judge acting in isolation would not possess. For disputes not requiring resolution of complex questions of law but still requiring adjudication of factual issues involving multiple areas of expertise, commissioners with specialised knowledge also act in combination. 747 Acting Commissioner Megan Davis and Professor of Law at the University of New South Wales is one such commissioner. It would be worthwhile exploring the degree of influence a commissioner\u00E2\u0080\u0099s expertise has on a Judge\u00E2\u0080\u0099s findings in relation to questions of law and how these adjudicators work together.748 I do not know whether these commissioners have knowledge of Indigenous legal traditions. Nor am I familiar with the status of the effort to acknowledge Legal Pluralism in Australian jurisdictions. However, in principle at least, it seems appropriate to investigate adoption of this model of dispute resolution for jurisdictions of Canada, a legally pluralist state, which requires its adjudicators to recognise, respect and consider, Indigenous legal traditions together with common and civil law traditions. These are some pragmatic responses to the complex cultural impediments I have discussed. However, this thesis also addressed technical legal ones. Owing to my background in environmental law with its administrative law mechanics, I was particularly interested in the application of the reasonableness standard to the substantive legal question of the adequacy of \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0747 I represented a client in a dispute that involved resolution of town planning as well as ecological issues and which was accordingly, adjudicated by Commissioners Tuor and Taylor due to their expertise in these respective disciplines. See Ian Black v Ku-ring-gai Council [2008] NSWLEC 1501. 748 Interviewing of Judges and Commissioners who work together to resolve Aboriginal land claims in Class 3 of the Court\u00E2\u0080\u0099s jurisdiction would be a good starting point for considering the adoption of this model in Canadian jurisdictions. \t \u00C2\u00A0\t \u00C2\u00A0 223\t \u00C2\u00A0consultation and the reality of Aboriginal applicants for judicial review being at the mercy of these legal ingredients governing review of consultation decision making. I have explained in detail the deleterious consequences that these mechanics permit for Aboriginal peoples involved in consultation decision making.749 As Garson JA\u00E2\u0080\u0099s approach in West Moberly illustrated, \u00E2\u0080\u009Cdoing deference\u00E2\u0080\u009D750 to administrative decision making permits consultation whereby ostensible effort by the Crown is good enough, and provided that both parties are working together, whether or not rights and interests are protected is of secondary importance. The governing consideration for the application of the reasonableness standard permits results whereby Indigenous legal traditions may be ignored, while at the same time, a decision is legally sound. In response to the dilemma these legal ingredients present, I posit that the review of the adequacy of consultation on a correctness standard would be preferable as a reviewing court would not be curtailed from considering intricacies of consultation processes such as the substance of consultation communications, by having to show deference to the administrative decision maker. Finally, I examined various operational realities of the implementation of the duty to consult which the Caribou cases illuminated, which impact upon the effort to have legal traditions respected and considered, and which cannot be ignored. It seems that government policy may influence the deferral of consultation to later fora including subsequent phases in assessment processes, which from the perspective of certainty that First Nation interests will be accommodated as well as timeliness, are less advantageous to the interests of a First Nation government. Moreover, economic and development imperatives can manifest in other ways \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0749 See Chapter 5 at 5.2 and 5.4 750 Alice Woolley and Shaun Fluker, What Has Dunsmuir Taught? Case Comment (2010) 47 Alta. L. Rev. 1017 \u00E2\u0080\u0093 1035 at para 37. \t \u00C2\u00A0\t \u00C2\u00A0 224\t \u00C2\u00A0deleterious to First Nations consultees, including by truncating the duration of consultation. Focus upon the role of government policy is particularly pertinent. Regardless of what the law requires it has its influence upon consultation decision making. The effort to incorporate Indigenous legal traditions into the common law in the context of the duty to consult cannot focus purely on the legal profession, academics, and the judiciary. The administrative arm of government and those who implement law have critical roles in achieving consultation outcomes. On several levels, the Caribou cases are a positive result that ought to be celebrated. They represent the successful use of the duty to consult, albeit at substantial cost.751 They also reveal a willingness among some judges to work with and consider Dunne Za legal traditions. I do not feel comfortable with concluding that decision making in this case study evidenced the killing of law in the manner that Robert Cover suggests. However, I also suspect this case study is exceptional; it was a rare victory among many battles over the duty to consult that are not won.752 As such, while celebration is warranted, it is perhaps short lived. Duty to consult challenges are merely one manifestation of the effort by Aboriginal peoples to have their rights acknowledged. Stepping beyond the duty to consult to consider the larger context of the conflict between Aboriginal peoples and the Canadian State, in recent claims for recognition of Aboriginal title, judges have mentioned Indigenous law in the recitation of facts753 and have also drawn conclusions from its \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0751 Personal communication, Mr Bruce Muir, 8 August 2012. The initial submission alone cost in the order of several thousand dollars to prepare. 752 In a more recent judicial review challenge for example, the West Moberly First Nation were unsuccessful in deflecting bulk sampling in their traditional territory and impact on a different Caribou herd. See West Moberly First Nations v. British Columbia (Energy and Mines), 2014 BCSC 924 in which consultation was found to be reasonable. 753 In William v British Columbia 2012 BCCA 285 at para 13, Groberman J cited a declaration of the Xeni Gwet\u00E2\u0080\u0099in which, inter alia, prohibited logging, mining and commercial road building in an area of territory that included much of the area to which the claim for Aboriginal title attached. The declaration also made reference to Xeni Gwetin conservation rules. This declaration did not appear to have any influence in Groberman J\u00E2\u0080\u0099s resolution of the legal issues in dispute. \t \u00C2\u00A0\t \u00C2\u00A0 225\t \u00C2\u00A0operation albeit neglecting its status as Indigenous law.754 From what reading of the written judgments reveals, Indigenous law has seemingly not influenced state based decision making with respect to the principal issues of Canadian law in dispute to the extent that the Caribou cases indicate. While acknowledging the limitations of my research, namely my principal reliance upon a single case study, it seems that although Indigenous law has a presence in state based decision making, considerable progress must occur in the extent to which state based decision makers recognise, respect and consider Indigenous legal traditions, before parity of influence exists with common law legal traditions in state based decision-making. \t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0\t \u00C2\u00A0754 In Tsilhqot'in Nation v. British Columbia 2007 BCSC 1700 Vickers J acknowledged the existence of the Tsilhqot\u00E2\u0080\u0099in seasonal rounds and these influenced his findings in relation to some of the areas over which he would have been prepared to make findings of Aboriginal title if the pleadings permitted this. See at para 959 which William cites at para 78: \u00E2\u0080\u009Cthere were cultivated fields. These fields were not cultivated in the manner expected by European settlers. Viewed from the perspective of Tsilhqot\u00E2\u0080\u0099in people the gathering of medicinal and root plants and the harvesting of berries was accomplished in a manner that managed these resources to insure their return for future generations. These cultivated fields were tied to village sites, hunting grounds and fishing sites by a network of foot trails, horse trails and watercourses that defined the seasonal rounds.\u00E2\u0080\u009D However, Vickers J did not acknowledge these seasonal rounds to be Indigenous law. Moreover, Groberman J in review of Vickers J\u00E2\u0080\u0099s findings, categorised this as forming part of the \u00E2\u0080\u009Chistorical, ethnographic and archaeological evidence.\u00E2\u0080\u009D See William at para 30 and 34. It was not given the weight of law. \t \u00C2\u00A0\t \u00C2\u00A0 226\t \u00C2\u00A0BIBLIOGRAPHY LEGISLATION Aboriginal and Torres Strait Islander Peoples Recognition Act, 2013 (Cth) Indian Act, RSC 1985, c 1-5 Species At Risk Act, SC 2002, c 29 Threatened Species Conservation Act, 1995 (NSW) JURISPRUDENCE Adam v Canada (Environment) 2011 FC 962 Beckman v. Little Salmon / Carmacks First Nation, 2010 SCC 53 Blueberry River v Canada (DIA) [1987] FCJ 1005 Chamberlain v. The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 Delgamuukw v British Columbia [1997] 3 SCR 1010 Dunsmuir v. New Brunswick, 2008 SCC 9 Gitxsan First Nation v. British Columbia (Minister of Forests) 2004 BCSC 1734, (2004) B.C.J. No. 2714 (S.C.) (QL) Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 SCR 511 Roy Kennedy v Director-General of the Department of Environment and Conservation and Another [2006] NSWLEC 456 Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2014 BCSC 568 Levenstrath Community Association Inc v Tomies Timber & Anor [2000] NSWLEC 95 Louis v. British Columbia (Minister of Energy, Mines, and Petroleum Resources) 2013 BCCA 412 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69, [2005] 3 S.C.R. 388 Newfoundland and Labrador (Treasury Board), 2011 SCC 62 \t \u00C2\u00A0\t \u00C2\u00A0 227\t \u00C2\u00A0Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 4 R v Powley [2003] 2 SCR 207, 2003 SCC 43 Rio Tinto Alcan v Carrier Sekani Tribal Council 2010 SCC 43 Shephard v R [1990] HCA 56, (1990) 170 CLR 573 Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74 Tsilhqot'in Nation v. British Columbia 2007 BCSC 1700 VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 FCR 25, 2000 CanLII 16275 (FCA) West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 William v British Columbia 2012 BCCA 285 GOVERNMENT DOCUMENTS Canada, Treaty No. 8 made June 21, 1899 and Adhesions, Reports (Ottawa: Queen's Printer, 1966), online: http://www.aadnc-aandc.gc.ca/eng/1100100028813/1100100028853#chp4 NSW, Legislative Assembly, Hansard, Second Reading Speech to the Threatened Species Conservation Bill (No. 2), 7 December 1995, page 4482, Ms Allan (Blacktown - Minister for the Environment). https://www.parliament.nsw.gov.au/prod/parlment/hanstrans.nsf/V3ByKey/LA19951207?open&refNavID=HA7_1 NSW, Legislative Assembly, Hansard, Second Reading Speech to the Threatened Species Conservation Amendment (Biodiversity Banking) Bill, 8 June 2006, Mr Bob Debus (Blue Mountains \u00E2\u0080\u0093 Attorney General, Minister for the Environment and Minister for the Arts). INTERNATIONAL MATERIALS Rio Declaration on Environment and Development, 14 June 1992, UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (1992) \t \u00C2\u00A0\t \u00C2\u00A0 228\t \u00C2\u00A0SECONDARY MATERIALS BOOKS Borrows, John. Canada\u00E2\u0080\u0099s Indigenous Constitution. Toronto, University of Toronto Press, 2010. Brody, Hugh. Maps and Dreams: Indians and the British Columbia Frontier. Vancouver, Douglas & McIntyre, 1981. Fumoleau, Ren\u00C3\u00A9. As Long as this Land Shall Last: A History of Treaty 8 and Treaty 11, 1870-1939. Toronto, McClelland and Stewart, 1973. Henderson, S J. First Nations Jurisprudence and Aboriginal Rights: Defining the Just Society. Saskatoon, Native Law Centre, University of Saskatchewan, 2006. Irlbacher-Fox, Stephanie. Finding Dashaa: Self-Government, Social Suffering, and Aboriginal Policy in Canada. Vancouver, UBC Press, 2009. Jenness, Diamond. The Sekani Indians of British Columbia. Ottawa, J. O. Patenaude, 1937. Millar, Bruce. Oral History on Trial: Recognizing Aboriginal Narratives in the Courts. Vancouver, UBC Press, 2011. Mc Call, Sophie. First Person Plural: Aboriginal storytelling and the ethics of collaborative authorship. Vancouver, UBC Press, 2011. Ridington, Robin. Little Bit Know Something, Stories in a Language of Anthropology. Iowa, University of Iowa Press, 1990. Ridington, Robin and Ridington, Jillian in collaboration with Elders of the Dane-Zaa First Nations, Where Happiness Dwells: a history of the Dane-Zaa First Nations. Vancouver, UBC Press, 2013. Tuhiwai Smith, Linda. Decolonising Methodologies Research and Indigenous Peoples. 2d ed London, Zed Books, 2012. Widdowson, Frances and Howard, Albert. Disrobing the Aboriginal Industry: the deception behind Indigenous cultural preservation. Montreal, McGill Queens University Press, 2008. CHAPTERS IN BOOKS Bill Devall and George Sessions, \u00E2\u0080\u009CDeep Ecology,\u00E2\u0080\u009D cited in Hanks, Craig (Editor). Technology and Values: Essential Readings. Malden, MA: Wiley-Blackwell, 2010. Pliny Earle Goddard, \u00E2\u0080\u009CThe Beaver Indians\u00E2\u0080\u009D in Anthropological Papers of the American Museum of Natural History, Volume X, Part IV. New York: The Trustees, 1916. \t \u00C2\u00A0\t \u00C2\u00A0 229\t \u00C2\u00A0A Irving Hallowell, \u00E2\u0080\u009COjibwa Ontology, Behavior and World View\u00E2\u0080\u009D in Fogelson, Raymond and Adams, Richard. The Anthropology of Power Ethnographic Studies from Asia, Oceania, and the New World. New York, Academic Press, 1977. Val Napolean \u00E2\u0080\u009CLiving Together Gitksan Legal Reasoning as a Foundation for Consent,\u00E2\u0080\u009D in Webber, Jeremy, McCleod, Colin and Others. Between Consenting Peoples: Political Community and the Meaning of Consent. Vancouver, UBC Press 2010. ARTICLES Eric Bateman, \u00E2\u0080\u009CUnderstanding Animal Legislation and the Environment \u00E2\u0080\u0093An Overview of some elements of the Threatened Species Conservation Act 1995,\u00E2\u0080\u009D (Paper delivered at NSW Young Lawyers Continuing Legal Education Seminar, 2010) [unpublished] Annie L Booth, Norm W Skelton, \u00E2\u0080\u009CYou Spoil Everything!\u00E2\u0080\u009D Indigenous Peoples and the consequences of Industrial Development in British Columbia\u00E2\u0080\u009D (2011) 13 Environ Dev Sustain at 695 Canada, Law Commission of Canada, Justice Within: Indigenous Legal Traditions (Discussion Paper) August 2006 Robert M Cover, \u00E2\u0080\u009CThe Supreme Court 1982 Term: Foreword Nomos and Narrative\u00E2\u0080\u009D (1983-84) 97 Harv. L. Rev 4 F.C Decoste, and Hadley Friedland, \"Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation,\" Book Review of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson and Albert Howard (2010) 377 Ottawa L Rev The Honourable Lance Finch Chief Justice of British Columbia, \u00E2\u0080\u009CThe Duty to Learn: Taking Account of Indigenous Legal Orders in Practice\u00E2\u0080\u009D (Paper delivered at the CLEBC Indigenous Legal Orders and the Common Law Conference November 15th, 2012) Sinclair Niigowedom James, \u00E2\u0080\u009CInks of Knowledge, Permanence, and Collectivity: A Response to Disrobing the Aboriginal Industry,\u00E2\u0080\u009D Book Review of Disrobing the Aboriginal Industry: The Deception Behind Indigenous Cultural Preservation by Frances Widdowson and Albert Howard, (2009) 203 Canadian Literature at page 196-201 John Ortley, \u00E2\u0080\u009CDecolonizing Methodologies: Research and Indigenous Peoples (Review)\u00E2\u0080\u009D (2005) 29 American Indian Quarterly 285 \u00E2\u0080\u0093 288 Chief Justice Preston \u00E2\u0080\u009CConsultation: One aspect of procedural propriety in administrative decision making,\u00E2\u0080\u009D A paper presented to the Australian Institute of Administrative Law, 26 June, 2008 Lorne Sossin, Indigenous Self Government and the Future of Administrative Law\u00E2\u0080\u009D UBC Law Review (2012) 45(2) at 595 \t \u00C2\u00A0\t \u00C2\u00A0 230\t \u00C2\u00A0Frances Widdowson and Albert Howard, \u00E2\u0080\u009CAboriginal \u00E2\u0080\u009CTraditional Knowledge\u00E2\u0080\u009D and Canadian Public Policy: Ten Years of Listening to the Silence\u00E2\u0080\u009D (Presentation for the Annual Meeting of the Canadian Political Science Association, delivered at York University, Toronto, Ontario June 1-3, 2006) Alice Woolley and Shaun Fluker, What Has Dunsmuir Taught? Case Comment (2010) 47 Alta. L. Rev. at page 1017 \u00E2\u0080\u0093 1035 COURT DOCUMENTS West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Initial Submission of the West Moberly First Nation to the Ministry of Energy Mines and Petroleum Resources, I Want to Eat Caribou before I die, June 2009) Her Majesty the Queen in Right of British Columbia as represented by Al Hoffman Chief Inspector of Mines, Victor Koyanagi Inspector of Mines, and Dale Morgan, District Manager Peace Forest District (Applicants) and Chief Roland Wilson on his own behalf and on behalf of all the members of the West Moberly First Nations and the West Moberly First Nations and First Coal Corporation (Respondents) and First Coal Corporation (Respondent) and Her Majesty the Queen in Right of the Province of Alberta, Grand Council of Treaty 3, and Treaty 8 First Nations of Alberta (Intervenors) (Application for Leave to Appeal of the Applicants, Her Majesty the Queen in Right of British Columbia as represented by Al Hoffman, Chief Inspector of Mines, Victor Koyanagi, Inspector of Mines and Dale Morgan District Manager, Place Forest District West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 (Factum of the Petitioners, Written argument of the Petitioners to the Supreme Court of British Columbia) SEMINARS / PRESENTATIONS / CONFERENCE MATERIALS Caleb Behn, \u00E2\u0080\u009CIndigenous Law as a Solution to Resource Conflict in Treaty 8,\u00E2\u0080\u009D Presentation co hosted by Lawyers Rights Watch Canada, delivered at the Vancouver Public Library, 28 February 2013 Tom Isaac, Lee Schmidt, Erin Tully, \u00E2\u0080\u009CThe Duty to Consult\u00E2\u0080\u009D, Seminar hosted by the Indigenous Law Students Society at the University of British Columbia, Faculty of Law, 21 November 2012 An Exploratory Workshop: Thinking about and Practising with Indigenous Legal Traditions, 30 September to 2 October 2011, Friendship Centre, Fort St John, British Columbia THESES Pooja Parmar, \u00E2\u0080\u009CClaims, histories, meanings: indigeneity and legal pluralism in India,\u00E2\u0080\u009D PhD Thesis, University of British Columbia Faculty of Law, 2012, unpublished Janna Beth Promislow, \u00E2\u0080\u009CTowards a Legal History of the Fur Trade: Looking at Law at York Factory, 1714-1763,\u00E2\u0080\u009D LLM Thesis, York University, October 2004 \t \u00C2\u00A0\t \u00C2\u00A0 231\t \u00C2\u00A0INTERNET MATERIALS Blake, Cassels & Graydon LLP, Canada's Natural Resources Paramount in 2012 Federal Budget, 3 April 2012, online: http://www.blakes.com/english/view_bulletin.asp?ID=5308./ Accessed 3 April 2012. MISCELLANEOUS Anne Cubbit, Hugh Brody, Treaty 8 Country [Video recording], [Canada]: Treaty 8 Film Collective; Vancouver: Moving Images Distribution, 1982 Resolution 13-03 M of 16-17 February 2013. Canadian Bar Association Resolution 13-03-M, carried by the Council of the Canadian Bar Association at the Mid-Winter Meeting held in Mont-Tremblant, QC, February 16-17, 2013 online: Canadian Bar Association . \t \u00C2\u00A0"@en . "Thesis/Dissertation"@en . "2015-02"@en . "10.14288/1.0077785"@en . "eng"@en . "Law"@en . "Vancouver : University of British Columbia Library"@en . "University of British Columbia"@en . "Attribution-NonCommercial-NoDerivs 2.5 Canada"@en . "http://creativecommons.org/licenses/by-nc-nd/2.5/ca/"@en . "Graduate"@en . "Interwoven legal traditions. The extent to which state based decision makers are engaging with indigenous legal traditions and the extent to which this is feasible : a celebration of an exceptional outcome"@en . "Text"@en . "http://hdl.handle.net/2429/51856"@en .