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

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.

OVERVIEW

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