The B.C. Court of Appeal Re-affirms Treaty Rights Do Not Trump the Duty to Consult

The B.C. Court of Appeal’s (the “BCCA”) recent decision in Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations) 2020 BCCA 215 (“Gamlaxyeltxw”) affirmed the Crown’s duty to consult a First Nation even if the accommodations available to a First Nation asserting rights may be limited by the treaty rights of another First Nation.

The Duty to Consult

The Crown must consult, and where necessary accommodate, an Aboriginal people whenever it contemplates conduct that may adversely impact Aboriginal title or rights. The duty to consult applies to asserted, proven or treaty rights.

The depth of consultation can vary depending on the strength of the Aboriginal people’s claim and the potential adverse impact. In some circumstances, the Crown may have to accommodate the affected Aboriginal people by changing its proposed course of conduct.

Conflict of Hunting Rights Between Gitanyow Community and the Nisga’a Nation

The Gitanyow (represented by the Gitanyow Hereditary Chiefs), have an outstanding right to a part of its traditional territory called the Gitanyow Lax’yip, which has not yet been recognized by the Courts. The Gitanyow Lax’yip overlaps with the Nass Wildlife Area, which was created pursuant to the Nisga’a Treaty. The Nisga’a Treaty recognizes Nisga’a’s non-exclusive right to hunt in the Nass Wildlife Area. Each year, the Crown sets the maximum number of moose that can be harvested in the Nass Wildlife Area. The Nisga’a Treaty guarantees Nisga’a hunters with the right to hunt a specific portion of the total allowable number of moose each year.

The Crown consulted Gitanyow when deciding an annual moose hunt allocation. Gitanyow believed allocating too many moose to Nisga’a hunters would adversely impact its rights and asked the Crown to reduce the number of moose allocated to Nisga’a hunters. The Crown Minister declined Gitanyow’s proposed accommodation, noting that the proposed accommodation would violate Nisga’a’s treaty rights.

Additionally, Gitanyow argued that the Crown had the duty to consult it on an annual management plan regulating Nisga’a hunting in the Nass Wildlife Area. The Crown did not consult Gitanyow on the management plan, taking the position that the management plan only regulated Nisga’a hunting in the Nass Wildlife Area and could not adversely impact Gitanyow’s rights.

Gitanyow Bring an Application For Judicial Review

Gitanyow brought an application for judicial review, arguing that the Crown breached the duty to consult when it did not accommodate its interest with respect to the total allowable moose harvest and the annual management plan.

The B.C. Supreme Court dismissed Gitanyow’s application, finding that the Crown had not breached the duty to consult with respect to the total allowable moose harvest or the annual management plan. The lower court found that the existence of treaty rights could diminish the Crown’s obligation to consult Aboriginal Peoples whose rights had not yet been recognized by the Court or the Crown. The lower court opined that in such situations, the duty to consult test from Haida Nation v. British Columbia (Minister of Forests) should be modified with an additional question: would recognizing the Crown’s duty to consult be inconsistent with the Crown’s obligations under a treaty? The lower court opined that if recognizing the Crown’s duty to consult an Aboriginal People would adversely impact the treaty rights of another Aboriginal People, the duty was not triggered.

The B.C. Court of Appeal: No Modification of Haida Test Necessary

Although the BCCA ultimately agreed with the lower court’s decision that the Crown had not breached the duty to consult, it found the Haida test applied to situations where treaty rights conflicted with unrecognized Aboriginal rights – modifying the Haida test was unnecessary.

The duty to consult arises whenever the Crown contemplates conduct that could adversely impact the rights of an Aboriginal group, whether or not those rights conflict with another Aboriginal group’s treaty rights. The conflict between treaty rights and unrecognized Aboriginal rights is not relevant to triggering the duty, but may become relevant when the Crown considers potential accommodations.

In this case, the BCCA found that the Crown acted appropriately when it consulted Gitanyow on the annual moose allocation, but did not accommodate its interest in such a way that would violate Nisga’a’s treaty rights. The BCCA also found the management plan did not trigger the duty to consult.

Conclusion

Gamalaxyeltx affirms the broad nature of the duty to consult. The BCCA confirmed the duty to consult is sufficiently flexible to address consultation in situations where conflicts between treaty rights and unrecognized Aboriginal rights conflict.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.