Gamlaxyeltxw v British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440
On March 20th, 2018, the British Columbia Supreme Court released a decision that considered for the first time how to resolve conflicts between the twin constitutional obligations placed on the Crown under s. 35: treaty obligations, and the duty to consult with respect to asserted rights and title. The Court held that, if the duty to consult with a First Nation would be “inconsistent” with – in the sense of being precluded by, in conflict with, or potentially negatively impacting – another First Nation’s rights under treaty, then the treaty rights must prevail. The rationale for prioritizing treaty rights is that they are “finalized”, whereas the duty to consult arises where a First Nation asserts, but has not yet proved, aboriginal rights and title. This is an important decision for First Nations with overlapping territories.
The Gitanyow Nation and Nisga’a Nation are located in northwestern British Columbia. The Nisga’a Nation’s s 35 rights have been exhaustively set out by its modern-day treaty (the Nisga’a Final Agreement, 2000). The Gitanyow have no treaty but have commenced claims for Aboriginal title and rights. The area at issue in this case was the Nass Wildlife Area (NWA), which forms part of the Nisga’a treaty, but is also subject to the Gitanyow’s overlapping assertions of rights and title.
The Gitanyow sought judicial review and a declaration of failure to consult with respect to two decisions taken the BC Minister of Forests, Lands, and Natural Resources (the “Minister”):
• The Minister set a total annual harvest (TAH) for moose in the Nass Wildlife Area. This limit applied to all harvesters.
• The Minister approved an annual management plan (AMP) that applied exclusively to Nisga’a harvesters.
Moose Total Annual Harvest Decision
With respect to the moose total annual harvest (TAH) decision, the province conceded that it had a duty to consult the Gitanyow. The Court agreed. The scope of consultation was on the higher end of the spectrum. The Gitanyow had a strong prima facie claim of Aboriginal rights and title, and the impact of the decision may be serious.
What is new about this decision is that the court considered the effect of the Nisga’a Treaty on the existence and scope of the Crown’s duty to consult the Gitanyow. The existence of the duty to consult was confirmed because “[n]othing in the Treaty precludes the Minister from consulting”, and consultation would not “place the Minister in conflict” with the Crown’s obligations under the Treaty (para 231, emphasis added). However, the scope of consultation was limited by the Treaty. The Minister was bound not to accept or consider modifications or influences to the Nisga’a Nation’s Treaty rights or allotment (para 231).
Annual Management Plan Decision
With respect to the approval of the Annual Management Plan (AMP), the Court found that the duty to consult the Gitanyow was not triggered. The decision was an internal Nisga’a governance mechanism that did not adversely impact the Gitanyow.
The Court went further to hold that, in the alternative, if there was an impact, then the duty to consult test must be modified to prevent potential negative impacts upon the on the Nisga’a Nation’s Treaty rights. The Crown’s duty to consult the Gitanyow with respect to the AMP decision “would be not only inconsistent with the Crown’s duty under the Treaty, it is incompatible with them” (para 151, emphasis added). Therefore, the Court declined to recognize a duty to consult.
Implications – Duty to Consult Modified
Gamlaxyeltxw has modified the legal test surrounding the duty to consult, where there is overlap with the modern treaty rights of another First Nation. The modification adds a fourth step to the existing legal test (para 295):
Would recognizing a duty to consult Aboriginal peoples who have asserted a claim for title and/or rights, in relation to the contemplated Crown conduct, be inconsistent with the Crown’s duties or responsibilities to the Aboriginal peoples with whom it has a treaty? If so, then the Crown’s duties and responsibilities flowing from the treaty must take precedence over the asserted, but not yet finalized, claims.
It is suggested here that the proper application of the modified test is limited to true conflicts between treaty and asserted rights. That is, the fourth step will only be met where it is truly impossible for the Crown to avoid interference with treaty rights while fulfilling its duty to consult.
To interpret Gamlaxyeltxw in any broader sense could result in the Crown seeking to avoid acting honourably toward First Nations with asserted but yet unproved rights. This is the very mischief the SCC in Haida Nation v BC, 2004 SCC 73 sought to prevent when it confirmed the duty to consult. It is also the only reasonable and fair interpretation given the amount of overlapping territory in Canada among Indigenous peoples, and the slow and lengthy process required to “finalize” rights through a modern treaty or through the courts.