BC Supreme Court reaffirms that inadequate consultation leads to quashed decisions

The level of Crown consultation required upon a change of control may be greater than you think.

On January 7, 2026, the British Columbia Supreme Court released its judgment in Gitanyow Hereditary Chiefs v. British Columbia (Minister of Forests), 2026 BCSC 18.

The Gitanyow Hereditary Chiefs sought judicial review of a decision made by the Minister of Forests to approve the transfer of a forest licence from Skeena Sawmills Ltd. to a corporation owned by the Kitsumkalum First Nation.

Gitanyow claimed that the Minister failed to uphold its constitutional duty to consult and accommodate in making this decision, erring in allowing a non-Gitanyow operator to purchase harvesting opportunities in Gitanyow territory that Gitanyow had also tried to purchase.

The Court agreed with Gitanyow. It determined that the Province of British Columbia had not adequately discharged its duty to consult and accommodate and quashed the Minister’s decision.

This decision, which is quite fact-specific, may provide useful guidance to those Nations looking to operate within another Nation’s traditional territory as well as to inform the Crown regarding the substantive obligations of the duty to consult as it relates to a change in control.

Background

This dispute arose after Kitsumkalum agreed to purchase the Licence through Skeena’s bankruptcy proceedings. To complete the transfer, Kitsumkalum required the Minister’s written approval. The decision to approve, add conditions or refuse a licence is discretionary and triggers the Crown’s constitutional duty to consult any Indigenous Nations whose rights may be affected.

In this case, Gitanyow had that right to be consulted and potentially accommodated, as the Licence area included large parts of Gitanyow’s Lax’yip – the territory over which Gitanyow claims Aboriginal title and rights.

The Minister ultimately approved the transfer. Gitanyow sought judicial review of that decision on the grounds that the Province failed to uphold its duty to consult Gitanyow and accommodate its interests.

Factors in the Court’s decision

This case had several facts that played a significant part in the Court’s decision, including:

1. Gitanyow has a strong prima facie claim to rights and title in the Lax’yip

The strength of a First Nation’s claim to Aboriginal rights and title directly influences the depth of consultation the Crown must undertake. In this case, Gitanyow has already been found to have a strong prima facie claim to Aboriginal rights and title in the Lax’yip (see Gitxsan and other First Nations v. British Columbia, 2002 BCSC 1701 at para. 72). This is important because it suggests the Crown must meet a deep level of consultation.

In addition, Gitanyow are in the process of litigating an Aboriginal title claim. Their trial was scheduled for March 2025 but was adjourned while the Supreme Court of Canada considers related litigation about overlapping claims. The Court emphasized that when a title case is far along, and a final decision is approaching, the Crown must take extra care to avoid decisions that could undermine the territory at issue.

2. Gitanyow and the Province have an agreement that directly addresses timber tenure

In 2022, Gitanyow and the Province entered into the “Gitanyow Incremental Reconciliation Pathway Agreement,” a government‑to‑government agreement aimed at incrementally implementing Gitanyow’s Aboriginal title – both its governance and economic components. A central commitment in the Pathway Agreement is to increase Gitanyow’s access to forestry resources so that they eventually hold 35% of the Annual Allowable Cut (AAC) within the Lax’yip. This was not an abstract goal, and the Province acknowledged that the Licence represented the only permanent, replaceable source of AAC available in Gitanyow territory and was therefore key to meeting the 35% target.

3. Gitanyow had prior binding commitments with Skeena

Gitanyow also had a strong operational relationship with Skeena through the “Interim Cooperative Harvest Agreement.” The Harvest Agreement required Skeena to follow the Gitanyow Lax’yip Land Use Plan, participate in joint planning and information sharing, provide revenue‑sharing to Gitanyow and maintain a fibre‑supply partnership. When the Licence was sold, none of these commitments transferred to Kitsumkalum. As a result, Gitanyow stood to lose not just influence over stewardship decisions, but real economic benefits and protections tied to its Aboriginal rights.

4. Gitanyow attempted, unsuccessfully, to purchase the Licence

Recognizing its importance to their title and economic future, Gitanyow attempted to purchase the Licence during the receivership process. The Province even committed up to $300,000 to support the bid. But the receiver refused to sell the Licence separately from the rest of the corporate assets. Because Gitanyow was only interested in the Licence, not the other assets, the bid was not accepted.

5. Kitsumkalum has no Aboriginal rights or title claims in the Licence area

Kitsumkalum’s interest in the Licence was purely commercial. It does not claim Aboriginal rights or title in the Lax’yip and has no overlap with Gitanyow territory within the Licence area.

6. Gitanyow and the Province agreed that deep consultation was required

Given the strength of Gitanyow’s claims and the Province’s existing reconciliation commitments, both Gitanyow and the Crown agreed that the transfer required deep consultation.

This expectation was reinforced by the parties’ 2012 “Gitanyow Huwilp Recognition and Reconciliation Agreement,” which created a structured, shared decision‑making model for land and resource decisions in the Lax’yip. The 2012 Reconciliation Agreement’s Engagement Framework assigns consultation levels to different types of decisions – for forest licence transfers, it explicitly requires complex/deep engagement, involving information sharing, collaborative discussions and an effort to reach consensus.

Legal Findings

When courts review Crown consultation, they usually start by determining where on the consultation spectrum the Crown’s obligations fall. At the low end, consultation may require little more than notice. At the high end, it demands meaningful dialogue, opportunities for the Nation to participate in the decision‑making process and clear reasons showing how Indigenous concerns were considered, as well as whether accommodation was possible. In this case, the Court found that the Province was required to meet the highest level of consultation, and it failed to do so.

Deep consultation was both promised and required

The Court held that deep consultation was required because the Crown had explicitly committed to deep and complex engagement with Gitanyow in the 2012 Reconciliation Agreement and the associated Engagement Framework. Having made this promise in a government‑to‑government agreement, the Province could not later retreat to a lower standard without undermining the honour of the Crown.

The Court also recognized that Gitanyow has a strong prima facie claim – potentially justifying deep consultation on its own – but clarified that it did not need to rely on this factor to reach its conclusion. The Crown’s own prior commitments made a deep level of consultation both expected and mandatory.

The adverse impacts of the Licence transfer were not “minor”

The Province argued that because the transfer did not create new harvesting rights, any impacts on Gitanyow were “minor.” The Court rejected this as an unreasonable oversimplification of the impacts and found two major adverse impacts to Gitanyow’s rights and title:

1. Loss of protections and economic benefits

The interim Harvest Agreement between Gitanyow and Skeena provided real and ongoing protections—alignment with the Lax’yip Land Use Plan, revenue‑sharing, information‑sharing, and limits on adverse impacts to Gitanyow’s rights. Because the agreement did not transfer to Kitsumkalum, and Kitsumkalum was hesitant to make equivalent commitments, Gitanyow risked losing all these benefits.

2. Loss of opportunities under the Pathway Agreement

The Pathway Agreement commits the Province to helping Gitanyow move toward holding 35% of the AAC in the Lax’yip. The Licence was the only viable way to reach that target. The Minister’s approval of the transfer, without conducting adequate consultation or considering accommodations, undermined its commitments and set Gitanyow back significantly.

Together, the Court found these adverse impacts were not “minor.”

The Province did not meet the deep consultation standard

The Province opened the consultation process with a formal notice package and an invitation to meet, in accordance with the deep/complex process required under the 2012 Reconciliation Agreement. Gitanyow raised serious concerns, sought more time since they were simultaneously trying to purchase the Licence and repeatedly warned that Kitsumkalum was not engaging with them over their concerns. Gitanyow proposed several accommodations and met directly with Kitsumkalum to try to advance discussions.

The Province, however, stopped responding to key correspondence, failed to follow up when Gitanyow communicated that Kitsumkalum was not engaging and relied heavily on Kitsumkalum’s unverified assurances that the negotiations were advancing, which it did not share with Gitanyow. The Province never meaningfully engaged with any of the potential accommodations Gitanyow proposed. Instead, the Province moved toward a decision without testing whether Gitanyow’s concerns had been meaningfully addressed.

The Province conducted the entire consultation process through letters and emails. Despite Gitanyow’s repeated concerns, it never met or engaged directly with Gitanyow about the decision. The Court called this approach “unusual” and inconsistent with deep consultation.

Based on this record, the Court concluded that the Province did not meet the standard required for deep consultation and consequently breached its constitutional duty to consult.

Accommodations the Province should have explored

The Court identified several accommodations the Province ought to have explored before approving the transfer, including:

• Making the Licence transfer conditional on Kitsumkalum adopting Skeena’s prior commitments to Gitanyow, including respecting the Lax’yip Land Use Plan
• Delaying approval until Gitanyow and Kitsumkalum negotiated a fibre‑sharing or tenure transfer arrangement
• Seeking AAC adjustments or other tenure opportunities to advance the Pathway Agreement

Other key observations

The Court also made several clarifying points with significance beyond this case.

1. Consultation is a positive obligation – the Crown must be proactive, even if the Indigenous group’s engagement is imperfect.
2. Past accommodations do not replace present obligations – existing revenue‑sharing or past benefits do not relieve the Crown from addressing new impacts.
3. UNDRIP and DRIPA have no material impact on the analysis – the Court concluded that existing constitutional jurisprudence on consultation was sufficient to resolve the case. Resorting to the standards in the United Nations Declaration on the Rights of Indigenous Peoples was not necessary.

Implications

Reconciliation agreements carry legal weight and can inform the duty to consult

Although not treaties, this case shows that reconciliation agreements like the Pathway Agreement meaningfully shape the Crown’s obligations in relation to the duty to consult and accommodate. The Court accepted the standard of consultation stated in the agreement as the standard to meet. It viewed Gitanyow’s reconciliation agreements through the lens of the honour of the Crown, meaning they created legally enforceable obligations that the Crown was bound to pursue.

This decision confirms that reconciliation agreements – like Gitanyow’s Pathway Agreement – are more than aspirational political documents. Even though they are not treaties, the Court treated the Pathway Agreement as a meaningful source of obligations, viewed through the honour of the Crown.

In practical terms, this means the Crown is bound by its commitments in reconciliation agreements. Those commitments will directly inform what adequate consultation looks like and help determine whether accommodation is required. This will matter for other Nations with similar agreements across BC and Canada, as the agreements can shape the Crown’s constitutional obligations.

Forest licence transfers do not have a “neutral” impact on Aboriginal rights and title

This decision demonstrates the potential impact on Aboriginal rights and title that can flow from a forest licence transfer. As Gitanyow demonstrated, a transfer can eliminate economic benefits, erase negotiated protections like land‑use plan commitments and hinder a Nation’s ability to pursue tenure as part of broader self‑determination efforts. Because these impacts are real and can meaningfully affect a First Nation’s rights and title, these transfers may trigger the highest level of consultation from the Crown.

Proponents should expect to meet the standards of previous operators

One of the important, practical takeaways is that proponents inherit the landscape they enter. Whether a proponent is an industry actor or another First Nation, taking over a licence in a Nation’s territory comes with expectations, including:

• Adherence to existing commitments
• Respect for land‑use plans
• Meaningful engagement with rights‑holders.

If prior operators reached stewardship agreements or revenue‑sharing arrangements, future operators may need to match or exceed those standards – especially when the host Nation has strong rights or title claims.

Building relationships with host Nations is essential

Proponents who seek to operate on a First Nation’s territory should treat relationship‑building as a core part of their project strategy. These relationships and open lines of communication can reduce the risk of inadequate Crown consultation because the parties can surface issues early, guide the Crown’s consultation obligations and proactively agree on accommodation.

Decisions made without adequate consultation will be quashed

The Court reaffirmed that when consultation is inadequate, the resulting decision cannot stand. The remedy is not a warning. The decision will be quashed. This underscores the constitutional force of the duty to consult.

MLT Aikins works collaboratively across sectors to advocate for the rights and interests of Indigenous Nations and communities. If your Nation has any questions about legal services, the MLT Aikins Indigenous practice group would be happy to assist.

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