Skip Navigation

Modern Treaty Rights Prevail Over Duty to Consult First Nations Asserting Aboriginal Rights

By Roy Millen and Matthew Tse
April 8, 2018

What happens when a First Nation asserts aboriginal rights or title that conflict with another First Nation’s rights under a modern treaty? In its recent decision, Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), the British Columbia Supreme Court (Court) ruled that in these circumstances, the “treaty right must prevail over the duty to consult [the non-treaty First Nation].” To our knowledge, this is the first court decision to consider the government’s duties in these circumstances.


The Gitanyow Nation and the Nisga’a Nation are located in northwestern British Columbia. The Nisga’a Nation, British Columbia and Canada entered the Nisga’a Final Agreement (Nisga’a Treaty) in 2000. The Gitanyow and the Nisga’a have a long-standing disagreement over territory along the Nass River. The Gitanyow have not entered a land claims agreement with the province or Canada, but have commenced claims for aboriginal title and rights, including over areas covered by the Nisga’a Treaty.

Under the Nisga’a Treaty, the Minister of Forest, Lands and Natural Resource Operations (Minister) — now the Minister of Forests, Lands, Natural Resource Operations and Rural Development — is responsible for setting a total annual harvest for moose hunting in the Nass Wildlife Area, which is defined in the Nisga’a Treaty. A committee must also prepare an annual management plan for the harvest of moose by the Nisga’a Nation (Annual Plan) to be presented to the Minister, who must either approve it or state what changes are required for approval. The Annual Plan sets out management provisions in respect of the Nisga’a harvest, such as preferences for methods, timing and locations of harvest, sex and age composition of that harvest, and how the harvest is monitored and data is collected. The Annual Plan only applies to the Nisga’a harvest and does not apply to how non-Nisga’a persons harvest moose.

In this case, the Gitanyow sought judicial review of the following:

  1. The Minister’s decision to set the 2016/2017 Annual Harvest of moose at 32
  2. The Minister’s decision to approve the 2016/2017 Annual Plan.

The Gitanyow argued that the Minister failed to meet the Crown’s duty to consult the Gitanyow in making these two decisions.


The duty to consult is a well-established principle in Canadian aboriginal law. The Haida Nation v. British Columbia (Minister of Forests) case provides that the Crown has a duty to consult Aboriginal Peoples where:

  • The government has actual or constructive knowledge of an asserted aboriginal right
  • The contemplated government conduct engages that asserted right
  • That conduct has the potential to adversely impact that asserted right.

The extent of consultation required ranges from “light” (e.g., disclosing information) to “deep” (e.g., providing the affected aboriginal group an opportunity to participate in the decision-making process). It is proportionate to the extent of the potential adverse impact and a preliminary assessment of the strength of the asserted right.


The Court dismissed the Gitanyow petition.

Annual Harvest Decision

For the Annual Harvest decision (i.e., how many moose the Nisga’a can harvest), the province conceded a duty to consult arose, and the Court agreed. The Court concluded a degree of consultation on the higher (but not “deep”) end of the spectrum was justified, considering prior cases noting the Gitanyow had a “good to strong prima facie claim” and that the impact may be serious.

The Court found the province had not met its requisite duty to consult prior to March 2016 because it had not been responsive to Gitanyow’s submissions and had withheld information. However, for the period after March 2016, the Court found consultation about the 2016/2017 Annual Plan was adequate. The province ensured the Gitanyow were “fully informed of the considerations, timing and process leading to the [Annual Harvest] decision, and were given an opportunity to provide input”. The province was not required to go so far as to accommodate the Gitanyow’s concerns, since doing so would have negatively affected Nisga’a treaty rights.

Annual Plan Decision

For the Annual Plan decision (i.e., setting methods and timing of the moose hunt), the Court found no duty to consult, principally because the decision did not adversely impact the Gitanyow. The Annual Plan is “only an internal governance mechanism of the Nisga’a Nation over its citizens”.

Alternatively, the Court found that a duty to consult would be “incongruous” with the province’s obligations under the Nisga’a Treaty. If the Minister were obliged to consider changes to the Annual Plan based on Gitanyow input, this would “sanction interference with the Nisga’a Nation’s internal governance by a party that is not a signatory to the Treaty”. Since the Gitanyow’s rights are not yet proven, the Court found this would conflict directly with the Nisga’a Treaty, which states that “nothing in this Agreement affects, recognizes, or provides any rights under section 35 of the Constitution Act, 1982, for any aboriginal people other than the Nisga’a Nation.”


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. It also accords with prior court decisions encouraging negotiated agreements with Aboriginal Peoples as important means of reconciliation. Commercial parties contemplating activity in treaty areas should carefully review the terms of the treaty and their implications for relations with the treaty First Nation and others. Courts will be reluctant to permit asserted rights to interfere with the exercise of treaty rights.

For further information, please contact:

Roy Millen                     604-631-4220
Matthew Tse                  604-631-5228

or any other member of our Aboriginal Law group.