The federal government reports that 25 modern treaties have been signed since 1975. In this province, three of those treaties have been completed through the BC Treaty Commission process, although not without some difficulty arising from geographically overlapping claims. In 2014, media outlets reported that several negotiations had stalled, citing overlapping claims as one of the biggest challenges. 

The Nisga’a Nation signed the first modern treaty in BC, which came into effect on May 11, 2000 (the “Treaty”). The neighbouring Gitanyow peoples claim Aboriginal title and rights over some of the area subject to the Treaty. In this context, Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440 considered for the first time how to resolve a conflict between the Crown’s duty to Aboriginal peoples with whom it had entered into a modern treaty and its duty to a different group of Aboriginal peoples with asserted claims for Aboriginal rights and title. At issue was the provincial government’s decision regarding moose harvesting and management plans. The Gitanyow sought a declaration that the Minister was obligated to consult them in respect of such plans.

The duty to consult arises when the Crown has real or constructive knowledge of the claim of an Aboriginal right, the Crown is contemplating conduct that engages the Aboriginal right, and there is a causative link between the conduct and the potential for adverse impacts on the asserted right. Madam Justice Sharma held that the Treaty constitutes a complete code that grants title and rights that are unassailable, except as the Treaty allows. In the result, asserted but not finalized rights, and the concomitant duty to consult, cannot influence the Treaty in any way except as prescribed by the Treaty. In the case before the court, a conflict arose between duties owed by the government to each of the Nisga’a Nation and the Gitanyow respectively with respect to management of moose, particularly due to a decline in moose populations in previous years. Madam Justice Sharma introduced an additional question for the analysis of the existence of a duty to consult where such a conflict exists: 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 the answer is yes, then the treaty right “must prevail over the duty to consult.”

Here, the duty to consult was triggered (and consultation was found to be partially inadequate) with respect to the Minister’s harvesting decision, although accommodation could not include proscriptions on Treaty rights. There was no duty to consult with respect to the moose management decision, but even if there was, Madam Justice Sharma held that such a duty would be inconsistent and incompatible with the Crown’s Treaty duties and responsibilities, in which case the Treaty would take precedence. It is unclear how broad the repercussions of this decision – which is under appeal – will be, but as treaty negotiations proceed in this province, Aboriginal groups may have cause for concern that asserted rights in overlapping claim areas may become truncated to subsequently established treaty rights by neighbouring Aboriginal groups. Consequences for the modern treaty negotiation process may be significant.