[co-author: Levi Graham, Law Student]
In its July 27, 2020 decision in Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), the British Columbia Court of Appeal held that where an Indigenous Nation asserts Aboriginal rights that conflict with the modern treaty rights of another Nation, the Crown is required to consult the asserting Nation regarding potential impacts to their asserted rights. However, the Crown is not expected to accommodate asserted rights by derogating from modern treaty rights. In this case, the court upheld the Crown’s decision to deny the accommodation requested by the Gitanyow Nation because it would have directly interfered with the treaty rights of the Nisga’a Nation.
The Gitanyow Nation and the Nisga’a Nation are located in northwestern British Columbia. The Nisga’a have entered into a modern treaty (Nisga’a Treaty). The Gitanyow have not. The Gitanyow assert Aboriginal rights over a portion of the Nass Wildlife Area (Nass), which is reserved for hunting under the Nisga’a Treaty.
Under the Nisga’a Treaty, there are two mechanisms for regulating the moose hunt in the Nass: a hunting quota, approved by the Minister of Forest, Lands, Natural Resource Operations and Rural Development (Minister), which determines the total annual moose harvest (Harvest); and an annual management plan, created by the Nisga’a and approved by the Minister, which regulates Nisga’a hunting practices (Plan).
The Gitanyow claimed that they were entitled to be consulted on both the Harvest and the Plan. Regarding the Harvest, they claimed that the Crown should accommodate their interests by reducing the allocation of moose to Nisga’a hunters in a manner inconsistent with the Nisga’a Treaty. The Crown declined to do so. With respect to the Plan, the Crown determined that it had no potential to adversely affect Gitanyow interests, and accordingly, there was no duty to consult the Gitanyow.
The Gitanyow sought to overturn these decisions, initially in the BCSC and then in the Court of Appeal. They were unsuccessful in both courts.
MODIFIED HAIDA TEST?
The BCSC dismissed the Gitanyow claim, finding that the Crown had adequately consulted the Gitanyow with respect to the Harvest and did not have a duty to consult with respect to the Plan.
In its decision, the BCSC considered the challenge of reconciling modern treaties with asserted but unproven Aboriginal rights. To address this conflict, the chambers judge modified the existing three-part Haida test: the Crown owes a duty to consult and accommodate where (1) the Crown has knowledge of an asserted Aboriginal right , (2) that right could be engaged by contemplated government conduct and (3) that conduct could adversely impact the asserted right.
The BCSC proposed a fourth criterion: If “recognition of a duty to consult the Gitanyow … would be inconsistent with the Minister’s duties under the Treaty … the treaty right must prevail over the duty to consult.”
COURT OF APPEAL DECISION
The B.C. Court of Appeal held that it was unnecessary to modify the Haida test to address conflicts between asserted Aboriginal rights and treaty rights. Applying the existing three-part Haida test, the court confirmed that the Crown had met its duty to consult before deciding on the Harvest, and the Crown was not obliged to consult the Gitanyow regarding the Plan.
Conflicting rights are dealt with as a question of accommodation. Treaty rights may limit the scope of available accommodations and, in certain cases, may mean that a particular accommodation is impossible. Here, the only accommodation sought by the Gitanyow directly conflicted with the Minister’s duties under the Nisga’a Treaty (i.e., the permissible harvest of moose by Nisga’a hunters). In short, the Crown is not required to accommodate an “asserted” Aboriginal right at the expense of an “established” modern treaty right.
Regarding the Plan, the court upheld the factual finding of the BCSC: the evidence did not demonstrate that the Plan adversely affected the moose population in the Nass. Given the lack of impact on Gitanyow asserted rights, the duty to consult was not triggered.
The Court of Appeal has confirmed that Indigenous Peoples asserting Aboriginal rights in the face of modern treaty rights remain entitled to consultation where their asserted rights are impacted. However, if the only accommodation proposed by the Indigenous People would undermine modern treaty rights, the modern treaty rights must be protected and hence prevail.
This outcome accords with the courts’ longstanding preference for negotiation regarding asserted Aboriginal rights. Treaties are the ultimate form of negotiated resolution, so preserving modern treaty rights is an important policy objective. It also accords with the fact that asserted Aboriginal rights are just that ― asserted, not proven. Treaty rights, by contrast, have been accepted and acknowledged by the Crown.
Going forward, governments, Indigenous Peoples and third parties such as project proponents will need to continue to be creative and flexible in navigating the complex world of treaty rights and asserted Aboriginal rights.