The Gitanyow Hereditary Chiefs have filed an appeal of Gamlaxyeltxw v. Her Majesty the Queen (Ministry of Forests, Lands and Natural Resource Operations) a BC Supreme Court decision that significantly impacts aboriginal hunting rights of not only the Gitanyow, but any First Nation in BC whose neighbouring First Nations have or will be signing a modern treaty with overlapping territory.
“The decision of Justice Sharma in our case has put aboriginal case law back 30 years,” said Malii (Glen Williams), Chief Negotiator and President. “If this decision stands, it will give government power to effectively extinguish aboriginal hunting rights of nations who have territories which are overlapped even for hunting purposes by those nations who have signed treaties.”
The Gitanyow brought the case forward in November 2015 after years of attempts to engage the Province in consultation on the Total Allowable Harvest and Annual Management Plan for Nisga’a Nation moose hunting that takes place in the Gitanyow Lax’yip (territory). The Nass Wildlife Area created by the Nisga’a Final Agreement overlaps 84% of the Gitanyow Lax’yip.
Following the signing of the Nisga’a Final Agreement in 1999, the Nass Moose Population declined by approximately 65 per cent.
“What we have sought in our case is to protect our aboriginal hunting rights, and to ensure meaningful consultation on any activities that affect that right,” said Simogyet Gamlaxyeltxw (Wil Marsden).
“We have data that shows, and the Nisga’a have agreed, that their Total Allowable Harvest was set too high following the signing of the treaty. This has contributed significantly to the decline of the moose population in our territory, and availability of moose for our people. The Government repeatedly assured us that the Nisga’a Final Agreement would not impact our aboriginal rights, both before and after the treaty was signed. We are committed to sustainability and preserving our Lax’yip for future generations. With the decline in the moose population, our people have lost over 30,000 pounds of organic meat from our territory. This is a real impact that the Government will not have to consult with us about as a result of this decision. “
In her decision, Justice Sharma concluded that treaty rights take precedence over “asserted” rights of their neighbours. The decision means that whenever there is a conflict between the Crown’s duty to consult with a non-treaty Nation regarding its asserted rights and/or title and a treaty right, then either the Crown may not be required to consult with the non-treaty Nation, or the extent of Crown consultation with the non-treaty Nation may be decreased. The Gitanyow case was dismissed and no annual consultation on the Annual Management Plan was ordered.
“The Gitanyow territory boundaries have never changed, we have evidence to support our title and rights that the courts have already acknowledged as strong,” said Malii. “The problem we face is that the modern treaty process is not based on evidence, and nations claim areas that are larger than their territory to ensure they get a larger amount of treaty settlement lands. This case demonstrates that based on bare assertions of claims in treaty negotiations that are then accepted as hunting areas, our Aboriginal title is rendered meaningless unless we and every other non-treaty nation in British Columbia actively pursue our title case in the courts. “