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Aboriginal Status and Rights – Duties of the Crown – Fair dealing and reconciliation – The Lawyer’s Daily

September 02, 2020

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.

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