B.C. appeal court rejects proposed modification to Haida Test on Crown’s duty to consult

Two First Nations claim Aboriginal or Treaty rights over overlapping areas

B.C. appeal court rejects proposed modification to Haida Test on Crown’s duty to consult

A case before the Court of Appeal for B.C. discussed the Crown’s duty to consult in relation to overlapping geographic areas where two different First Nations assert either established treaty rights or a pending claim for Aboriginal rights.

The case of Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215 involved the Nisga’a Treaty, signed between the Nisga’a Nation and the Crown, governing the Aboriginal rights of the Nisga’a pursuant to s. 35 of the Constitution of Canada.

The treaty established the Nass Wildlife Area, a hunting area over which the Nisga’a have non-exclusive rights to hunt. It also set out the decision-making responsibilities of the Crown, who is to be represented by the Minister of Forests, Lands and Natural Resource Operations, in connection with the maximum allowable harvest of moose in the hunting area and the annual management plan which regulates the hunting activities of the Nisga’a.

The issue revolved upon the Crown’s duty to consult with Gitanyow, which has a pending claim for s. 35 Aboriginal rights over Gitanyow Lax’yip, a geographic area which overlaps with the Nass Wildlife Area.

The applicable legal principle can be found in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, where the Supreme Court of Canada laid down the Haida Test. The test states that the Crown has a duty to consult and to accommodate, if appropriate, in situations where Aboriginal rights may potentially be adversely affected.

In this case, Gitanyow was questioning two of the minister’s decisions, which approved both the maximum allowable harvest of moose and the 2016-2017 annual management plan. While the Minister of Forests agreed to consult the Gitanyow regarding the maximum allowable harvest, the Minister declined to consult in connection with the annual management plan, which allegedly did not adversely affect Gitanyow interests.

The chambers judge dismissed the petition filed by Gitanyow but suggested modifying the Haida test by not imposing a duty to consult an Indigenous group claiming s. 35 rights, if imposing such a duty would go against the Crown’s duties under a treaty executed with Indigenous peoples.

The court, however, disagreed with the chambers judge’s suggested change to the Haida Test, stating that the test has consistently been relied upon for more than 15 years and that the test is flexible enough to address the issues of this case.

The court thus applied the Haida test and said that the Crown had no duty to consult regarding the annual management plan. The plan, specifically applicable to Nisga’a hunters, would not adversely affect the rights of the Gitanyow, the court said.

The court then found that the minister’s consultation for the maximum allowable harvest was adequate and capable of tackling the concerns of the Gitanyow, such as conservation issues.

For these reasons, the court dismissed the appeal.

“This decision reinforces the strength and enforceability of modern treaties, even when the rights affirmed in the treaty conflict with other First Nations’ asserted aboriginal rights and title,” wrote Roy Millen and Matthew Tse of Blake, Cassels & Graydon LLP in a bulletin.

The authors suggested carefully reviewing the terms of a treaty if one seeks to engage in commercial activity in treaty areas, because courts may be hesitant to interfere with treaty rights.

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