In The Age Of Modern Treaties, How Should The Duty To Consult Account For The Treaty Rights Of Other Nations?

• Published date: 05 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Fasken
• Author: Mr Kevin O'Callaghan, Madison Grist and Samuel Geisterfer

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 Court¹ 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...