What happens when Crown commitments in a modern-day treaty agreement collide with credible assertions of Aboriginal rights and title made by a neighbouring First Nation?
What this case is about
This case concerns a dispute over Gitanyow First Nation’s asserted s. 35 rights and the Nisga’a Nation’s treaty rights under the Nisga’a Treaty (the “Treaty”). The Nisga’a Treaty established a hunting ground called the Nass Wildlife Area where the Nisga’a have non-exclusive rights to hunt. The Gitanyow also have a claim to protected s. 35 rights in a portion of the Nass Wildlife Area.
The Gitanyow sought judicial review of two decisions of the Minister of Forests, Lands & Natural Resource Operations (the “Minister”) related to the annual harvesting and management of moose. Gitanyow argued that the Minister should have accommodated their interests by reducing the allocation of moose to Nisga’a hunters promised in the Nisga’a Treaty. Further, Gitanyow claimed that the Minister should have consulted them concerning the annual management plan for the hunting season.
Section 35 of the Constitution Act, 1982 requires the Crown to consult with a First Nation where the Crown has knowledge of the potential existence of an Aboriginal right and contemplates conduct that might adversely affect it (the Haida test). Where Crown conduct may adversely impact an Aboriginal right, the Crown may need to accommodate the First Nation to avoid irreparable harm or minimize the effect of infringement on its rights.
The chambers judge dismissed Gitanyow’s petition, finding that the Minister had satisfied its duty to consult with respect to the allowable harvest and had no duty to consult with respect to the Management Plan.
In coming to its decision, the chambers judge modified the Haida test to include a fourth step: consideration of whether consultation would negatively impact a First Nation’s rights under treaty. The chambers judge was concerned that prioritizing asserted Aboriginal rights over Treaty rights could have a chilling effect on the process of reconciliation through treaty-making.
What the Court of Appeal found
The Court held that it is unnecessary to modify the Haida test in order to recognize the limits of accommodation that treaty rights might impose. The potential impact of consultation on another Nation’s treaty rights should not prevent the Crown from consulting with a First Nation with a credible claim to s. 35 rights.
The Court stated that potential impacts on treaty rights are more appropriately considered in the context of accommodation. Whether accommodation of First Nation’s rights is required is a separate inquiry that arises once consultation has begun. At this stage, the Crown can determine whether and to what extent accommodating the First Nation will be limited by another First Nation’s treaty rights.
In short, if the Crown is aware of a credible claim for an Aboriginal right or title and contemplates Crown conduct that might adversely affect the claimed right, the duty to consult is always triggered.
Despite this finding, the Court agreed that the chambers judge had made the correct decision in dismissing Gitanyow’s petition, based on the three-step Haida analysis. The Court dismissed the appeal.
Why this case matters
The Court confirmed that the three-step Haida test for a Crown’s duty to consult remains the appropriate test even where consultation with respect to a First Nation’s asserted s. 35 rights might conflict with modern treaty rights. Concerns over potential impacts on treaty rights are not germane to the duty to consult analysis. They may, however, be factored into the Crown’s duty to accommodate.
This case establishes that modern treaty rights do not necessarily prevail over the duty to consult a non-treaty First Nation. While it overturns the disconcerting chambers decision that preferred Nisga’a treaty rights to Gitanyow’s Aboriginal rights, the court left open the question of priority for another day. It may be that the Supreme Court of Canada will have to grapple with this important issue.