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ABORIGINAL STATUS AND RIGHTS - Duties of the Crown - Fair dealing and reconciliation

Wednesday, September 02, 2020 @ 6:39 AM  


Appeal by the hereditary chiefs of the Gitanyow people from a decision dismissing their application for judicial review of the Minister of Forests refusing to consult on the annual management plan for the Nisga’a moose hunters and determining that the consultation undertaken by the Minister in relation to the approval of the total allowable harvest in the Nass Wildlife Area was adequate to meet the honour of the Crown. The Nis­ga’a Treaty established a hunting area known as the Nass Wildlife Area where the Nisga’a had non-exclusive rights to hunt. The appellants had an outstanding claim for s. 35 Aboriginal rights in an area that overlapped with the Nass Wildlife Area. The appellants requested the Minister to accommodate the appellants’ interests in hunting moose by reducing the allocation of moose to Nisga’a hunters in a manner inconsistent with the Nisga’a Treaty. The appellants also argued that the annual management plan had the potential to adversely affect their interests and that there was thus a duty to consult the appellants in respect of its approval. The application judge held that the Minister did have a duty to consult with respect to the total allowable harvest of moose, but that he complied with that duty. The chambers judge concluded, however, that the annual management plan decision did not have the potential to adversely affect the appellants’ s. 35 rights, and accordingly did not trigger the duty to consult. The chambers judge also held that the Haida test should be modified to consider the potential for interfering with treaty rights.

HELD: Appeal dismissed. While it was unnecessary for the judge to modify the Haida test to determine when the duty to consult was triggered, the reviewing judge did not err in her fundamental approach to the issue before her. The reviewing judge did not err in the specific findings she made as to the objectives of the appellants in the consultation process, and in holding that the consultation by the Minister concerning the total allowable harvest was adequate to meet the honour of the Crown. The Minister did not err in concluding that the plan presented in 2016 did not have the potential to adversely affect the appellants’ rights. The annual management plan was directed to Nisga’a hunters and was expressly not applicable to non-Nisga’a hunters such as the appellants. There was nothing in the inherent structure of the annual management plan as it was set out in the Nisga’a Treaty that would trigger a right to consult the appellants in respect of the annual approval of this plan. Any impact on the appellants’ rights arising from the methods and timing of the Nisga’a hunt would be no more than marginal and insufficient to meet the Haida test for consultation.

Gamlaxyeltxw v. Briish Columbia (Minister of Forests, Lands & Natural Resource Operations), [2020] B.C.J. No. 1178, British Columbia Court of Appeal, D.C. Harris, J.J.L. Hunter and S.A. Griffin JJ.A., July 27, 2020. Digest No. TLD-August312020005