Aboriginal Rights in Conflict: First in Time, First in Right?
Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440
In Gamlaxyeltxw, Justice Sharma of the British Columbia Supreme Court addressed the novel issue of how to resolve a conflict between the Crown’s constitutional duty to one group of Aboriginal people, with whom it has entered a modern treaty, and its constitutional duty to a different group of Aboriginal people, who have asserted, but not yet finalized, claims for Aboriginal rights and title. In order to resolve the Crown’s duelling constitutional obligations, Sharma J. modified the test regarding the duty to consult to ask whether recognizing a duty to consult would be inconsistent with the Crown’s duties under a treaty. Sharma J. held that in the face of such a conflict, the treaty right must prevail over the duty to consult the non-treaty First Nation.
What this case is about
The conflict arising in this case is between two First Nations in northwest BC who have a long-standing disagreement as to the boundaries of their respective traditional territories. The respondent Nisga’a Nation signed a modern treaty with the federal and provincial governments in 2000 (the “Treaty”). The Treaty regulates the wildlife resources, including moose harvesting, within a portion of land described by the Treaty as the Nass Wildlife Area (the “Area”). The applicant Gitanyow Nation asserts Aboriginal title and rights over a significant portion of the Area.
The Gitanyow sought judicial review of two decisions made by the Minister of Forests, Lands and Natural Resource Operations (the “Minister”) pursuant to the Treaty relating to the annual harvesting and management of moose. The Gitanyow argued that the Minister had a duty to consult the Gitanyow in making both of the decisions, and that it failed to do so.
Analysis
In dismissing the Gitanyow’s petition, Sharma J. added a fourth step to the Haida test for consultation:
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 and responsibilities to the Aboriginal peoples with whom it has a treaty (in a way that negatively impacts the Treaty Nation’s rights)?
This fourth step resolved the “very real conflict presented on these facts to the fundamental nature of the Crown’s duty to each of the Nisga’a Nation and the Gitanyow.”[1] The Court was concerned about the chilling effect that prioritizing asserted Aboriginal rights over Treaty rights could have on the process of reconciliation through treaty-making, the Supreme Court of Canada’s “preferred method” for reconciliation.
Why this case matters
If left undisturbed by appeal, this case will reinforce Canadian courts’ preference for reconciliation through treaties negotiated between Aboriginal groups and the Crown. By explicitly granting priority to treaty rights over asserted, but not-yet-proven, Aboriginal rights, the Court is implicitly encouraging Aboriginal groups to enter into negotiated agreements. Further, there is some urgency for First Nations to do so quickly, as they may otherwise find themselves in a situation in which their neighbours’ treaty rights are given preference, by both Crown and court, over their own.
But this decision is not immune to critique. While the ruling is pragmatic—presumably, in a true conflict situation between a treaty right and an asserted right, the Crown must prioritize one over the other—one could also ask whether the focus on finalized and documented Aboriginal rights is correct in theory.
Section 35(1) of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights.” This wording indicates that “the Crown has already accepted the existing Aboriginal rights, and it is really just a matter of identifying what they are.”[2] The Crown or Court’s identification or acceptance of an Aboriginal right does not create the right—“unwritten” Aboriginal rights exist, and are constitutionally protected, whether or not this ever happens. Given their pre-existence, is it appropriate to place extra value on, to give better footing to, treaty rights or rights that are otherwise accepted by Canada?
This case seems to have created a “first in time, first in right” principle for Aboriginal rights, whereby the first First Nation to “register” or prove its claims with the Crown (through litigation or modern treaty) gets the right to use and manage the claim area to the detriment of all other First Nations who assert these claims. While this case may cause added urgency for Aboriginal groups to negotiate with the Crown sooner rather than later, it is not clear that this urgency is constitutionally sound.