Posted by

This case involves an issue that is being litigated for the first time in Canadian courts.  In the decision, Justice Sharma of the British Columbia Supreme Court was asked to address how to resolve a potential conflict between two constitutional duties: the Crown’s duty to an Aboriginal people with whom it has entered into a modern treaty and the Crown’s duty to Aboriginal people who are relying upon their (asserted) s. 35(1) Aboriginal Title and Rights.

The petitioners are eight hereditary chiefs of the Gitanyow people on behalf of Gitanyow. They claim a breach of the duty to consult in relation to two decisions made by the Minister of Forests, Lands and Natural Resource Operations (the “Minister”) regarding moose hunting in the Nass Wildlife Area (“NWA”):  setting the total annual harvest of moose in the NWA (“TAH decision”); and the approval of the annual management plan (“AMP decision”). Both decisions were made pursuant to the Nisga’a Treaty (“Treaty”).  The Gitanyow’s position is that they have and exercise Aboriginal Title and Rights within 32 percent of the NWA (“overlap”).

The decision is of particular significance, in part, because the Court modified the test for the duty to consult to include a consideration of whether consultation would impact a First Nation’s rights under a treaty.  Applying this modified test, the Court found that Crown consultation with Gitanyow on the TAH decision would not impact Nisga’a Treaty rights. Therefore, the Province had a duty to consult the Gitanyow and on the facts the Court held that the Province met its duty to consult.  However, the Court found that consultation with Gitanyow on the AMP decision would be inconsistent with the Treaty and the Crown’s obligation to Nisga’a. Therefore the duty to consult with Gitanyow was not even triggered.

Legal Reasoning

The Court gave considerable weight to the fact that a treaty is a negotiation between parties seeking certainty and predictability in the exercise of constitutionally protected treaty rights, including rights to engage in land and resource management decisions. The Treaty is characterized as the final determination of all Nisga’a s. 35 rights and claims, and as such the Court found that it must be interpreted liberally but applied strictly. The Court found that treaty rights are constitutionally protected rights that cannot be modified or amended without the Crown providing “additional or replacement rights.”

By contrast, the Court characterized the rights of the Gitanyow as “asserted rights” and therefore not guaranteed. The Court explained that the protection of “asserted rights” falls under the umbrella of the duty to consult. The Court found that in determining the Crown’s duty to consult, in addition to considering the Haida factors of the strength of claim and the severity of the impact, the Court must also consider a new factor: whether the asserted claim overlaps land or resources governed by a modern treaty. The Court asked “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, the Court held that the Crown’s duties and responsibilities flowing from the treaty must take precedence.

Justice Sharma comes to this conclusion based on the constitutional status of a treaty, the honour of the Crown in entering a treaty, and the “fundamental bargain the Nisga’a Nation struck in accepting that a Treaty exhausted all their claims to title and rights under s. 35 of the Constitution Act, 1982.”

The Court also considered the non-derogation clause in the Nisga’a Treaty.  This clause says that nothing in the Treaty affects, recognizes or provides for the rights of any Aboriginal people other than Nisga’a.  It is this clause which the Crown typically relies upon to assert that modern treaties will not impact the rights of neighbouring Nations. The clause also says that if a court finds that an aboriginal group other than Nisga’a has rights that are adversely affected by the Treaty, the provision of the Treaty in issue will operate so as to not affect those rights (or be “read down”), or if that is not possible without amendment, the Nisga’a and Crown will make best efforts to amend the Treaty.  The non-derogation clause does not allow for judicial or administrative modification of the Treaty’s terms even where a First Nation has established s. 35 rights that are infringed by the Treaty.  In other words, on the language of the Treaty, a court cannot amend the Treaty; amendments can only be made with the consent of the Nisga’a and Crown.

Justice Sharma notes that the focus of the Gitanyow’s legal challenge was not the validity of the Treaty but the decisions being made under the Treaty.  The Gitanyow were not challenging the rights already entrenched in the Treaty, such as the allotment of harvesting rights. Rather,  the Gitanyow were challenging the failure of the Crown to consult on the specific decisions under the Treaty.

Consultation on the Total Annual Harvest of Moose (TAH) decision

The Treaty provides that the TAH decision is made by the Minister in consultation with Nisga’a. For the TAH decision, the Court found that consultation with the Gitanyow would not impact Nisga‘a Treaty rights. The Court then went on to find that the purpose of consultation is to protect the resource (in this case moose) pending final determination of “asserted Aboriginal rights” so that these rights do not become worthless in the meantime. TAH decisions that may deplete the resource would negatively affect the Gitanyow.

The Court found that there was a direct link between the Minister’s decision in setting the TAH and the potential adverse impact on the Gitanyow’s right to harvest moose, and therefore  the duty to consult was triggered.

Based on the Court’s review of the record of engagement between the Province and Gitanyow, Justice Sharma found that the Province fulfilled its duty to consult the Gitanyow prior to making the TAH decision.

Consultation on the Annual Management Plan (AMP) decision

The AMP sets out how Nisga’a citizens harvest moose. In contrast to the TAH decision, the AMP is implemented, monitored and enforced solely by Nisga’a. Pursuant to the Treaty, the Minister’s decision-making in relation to the AMP is limited. The Minister can approve the AMP and, if it is not approved, the Minister can offer suggestions as to how it can be changed to receive approval. The Minister can only withhold approval if he or she provides sufficient grounds for refusal.

Even though the exercise of Nisga’a moose hunting rights is mainly in the area subject to “overlap” with Gitanyow Territory,  the Court found that the Nisga’a right to manage the moose population under the AMP was a finalized right under the Treaty.  The Court considered that consultation with the Gitanyow would negatively impact the Nisga‘a Treaty right to manage moose populations and, because of that, the Crown‘s duty to consult Gitanyow could not be triggered.  The Court went on to say that if the Gitanyow have a right to be consulted on how Nisga’a citizens exercise their finalized Treaty rights, this would undermine the Treaty process entirely.

Potential Implications

With the legal challenge in this case, the Court had to decide how to treat rights confirmed by Treaty in relation to asserted but not recognized  s. 35 rights.  The place where the rights appeared in conflict was one Aboriginal group’s recognized treaty rights to make decisions regarding moose hunting for the benefit of its citizens, and another group’s (unrecognized) Aboriginal Title and Rights to steward, manage and sustain moose populations for the benefit of its citizens.

The Court framed the question to be about how the Crown must conduct itself when faced with dual constitutional duties that may come into competition. The Court answers by concluding that if there is an inconsistency between Crown duties owed to the two Nations, then the Crown’s duties under treaty take precedence. In doing so the Court gave significant weight to the constitutional certainty that treaties are intended to provide to Aboriginal signatories (and the Crown).

This reasoning has several potential implications.

The Duty to Consult

According to this decision, where the Crown has retained sufficient decision making authority under the terms of a treaty, and the decision has a significant impact on a neighbouring Aboriginal group, the Crown will continue to have a duty to consult the neighbouring group in relation to its asserted rights.  However, when the treaty decision-making authority is more in the hands of the treaty First Nation, the Crown may no longer have the same obligations to consult the neighbouring Nation. In practice, as a result of this decision, it is possible that an Aboriginal group who had been consulted on matters that affect use and governance of their title area, may, after treaty is reached with their neighbour, no longer be consulted by the Crown about certain decisions.

The decision in this case did not consider whether, and under what circumstances, there would be any obligations on the Nation making decisions under the treaty that were impacting other Nations. No judicial decisions have specifically grappled with whether duties to consult and accommodate for example can arise for one Aboriginal group in relation to another.

Treatment by the Court of “Asserted“ versus Treaty Rights

This Court’s decision indicates that constitutional rights that have been confirmed (whether by treaty or other agreement, or by the courts) will have greater legal force than those that are asserted. We note that the Court’s decision did not consider the implications should aboriginal and/or inherent title and rights be recognized by the Crown by agreement or other process of reconciliation, without the requirement of proof in a court. By concluding that treaty rights take precedence over asserted rights, the Court simply ignores the fact that Aboriginal title and rights exist and are inherent, whether recognized by the Crown or not.

The Court’s reasons emphasize that an asserted right to harvest is not legally the same under Canadian law as a modern treaty right to harvest – concluding that an asserted right cannot modify a treaty or infringe finalized treaty rights, including treaty governance rights.  Moreover, the provisions of the treaty as interpreted by the Court (such as, for example, the non-derogation clause) may not provide the sphere of protection relied upon by the Crown to protect against impacts on the rights of other Aboriginal groups.  Aboriginal groups who have existing rights that have not yet been recognized may need to move toward establishing their s. 35(1) title rights (by court or Crown recognition) to ensure their protection.  This is a significant implication given the extraordinary cost and time commitments required to achieve a court declaration.

Addressing s.35 Rights

This case illustrates the uncertainty and confusion that prevails when the Crown processes and structures for reaching modern treaties and addressing Aboriginal Title and Rights are not based on recognition and respect for inherent title and rights.

In this case the Court identified the Nisga‘a Treaty’s objective as being to bring certainty, but, as is evident from the facts of this case, that objective is not achieved when overlaps, boundary disputes and competing claims are not resolved.   Indeed, certainty cannot and will not be achieved in the absence of a principled foundation that recognizes and respects the inherent title and rights of Indigenous peoples in and to their territories, and supports respectful resolution of territorial disputes between neighbouring Nations.

Processes and structures founded on recognition of Title and Rights can transform the dialogue.  This case emphasizes the importance of supporting Indigenous Nations taking the lead and through their own laws, practices and protocols, resolving territorial and other disputes with neighbouring Nations.  Given the impact this decision has on Indigenous Nations both inside and outside of the BCTC process, the Crown must honourably support such processes.  The Crown can no longer stand on its position  that modern treaties will not impact neighbouring nations.  Modern treaties should not proceed to ratification without adequate attention to these important matters.

The Gitanyow are appealing to the BC Court of Appeal.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact  any of our lawyers.