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Bulletin

In the Age of Modern Treaties, How Should the Duty to Consult Account for the Treaty Rights of Other Nations?

Fasken
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Indigenous Bulletin

On July 27, 2020, the BC Court of Appeal released its judgment in Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215. The court dismissed an appeal brought by Gitanyow hereditary chiefs regarding an unsuccessful judicial review of ministerial decision-making pursuant to the Nisga’a Treaty.

This case involved a judicial review of two decisions of the Minister of Forests, Lands and Natural Resource Operations dating back to 2016. The decisions involved the wildlife management regime in the Nass Wildlife Area. The Nass Wildlife Area is part of the area covered by the Nisga’a Final Agreement. The Nass Wildlife Area overlaps with the claims of other Indigenous groups, including the Gitanyow.

In October 2016, the Minister approved decisions regarding the allowable harvest of moose and the wildlife management plan pursuant to the Nisga’a Final Agreement. The Minister consulted with the Gitanyow regarding the allowable harvest of moose but did not consult with them regarding the wildlife management plan. The wildlife management plan arises out of the Nisga’a Treaty and relates to the methods and limitations for Nisga’a harvesting of designated species. One such species is moose - the management plan set out age and sex requirements for legally harvestable moose, among other requirements, all within the overarching limitation of the allowable harvest.

The Gitanyow hereditary chiefs asserted that the consultation regarding the allowable harvest of moose was inadequate. They also asserted they were owed a duty to consult relating to the wildlife management plan.

The BC Supreme Court[1] determined that the Minister’s consultation with the Gitanyow regarding the allowable harvest was adequate. Further, the court determined that the Gitanyow were not owed a duty to consult regarding the wildlife management plan.

Notably, the BC Supreme Court proposed modifying the longstanding Haida test to account for the Nisga’a Treaty rights. Haida is the leading Supreme Court of Canada decision that established a three-part test to determine the application and scope of the duty to consult. Here, the court proposed adding a fourth question when Treaty rights are involved; namely, “would recognizing that the Crown owes a duty to consult … be inconsistent with the [Crown’s] duties and responsibilities under the Treaty … in a way that may negatively impact the [Treatied] Nation’s rights?”[2] The Court of Appeal disagreed and maintained that the Haida test as it had been articulated was sufficient for the task.

The Court of Appeal Rejects the Modified Haida Test

While ultimately agreeing with the outcome of the BC Supreme Court’s decision, the Court of Appeal rejected the proposed modification to the Haida test. The court held that the three-part Haida test has sufficient flexibility to account for situations involving competing Aboriginal and Treaty rights - noting this test has been applied consistently over the past 15 years.

The Court of Appeal held that no duty to consult was owed to the Gitanyow in the approval of the wildlife management plan because the plan only applied to Nisga’a citizens and did not impact non-Nisga’a individuals. Additionally, the court found that there was no clear causal link between the wildlife management plan and the availability of moose to the Gitanyow.

The court also determined that the duty to consult the Gitanyow was fulfilled by the Minister in approving the allowable harvest of moose. The Minister engaged with the Gitanyow prior to issuing his decision and, although he did not accede to their requests, the consultation was sufficient. The Court of Appeal viewed the Minister’s decisions as intertwined, given that concerns expressed by the Gitanyow focused on the sustainability of the moose population and their own ability to hunt moose. The court determined that these concerns were considered by the Minister in his decision.

Implications: Potential Conflicts with Treaty Rights Do Not Preclude a Duty to Consult Other Nations with Asserted Rights

This decision further cements the significance and flexibility of the Haida test and provides guidance specific to situations where asserted Aboriginal rights and established Treaty rights potentially overlap or conflict. The court noted that “[t]here may be circumstances where accommodation of the claimed right cannot be achieved without interfering with an established treaty right”.[3] However, the potential for such a conflict does not mean that the Crown need not consult with the Indigenous group with the claimed right. Consultation may still be required, and the conflict with an existing Treaty right would be dealt with in terms of what might be available for the Crown to offer as accommodation in the circumstances.



[1] Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440.

[2] Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440 at para. 224.

[3] Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215 at para. 67.

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