The B.C. Supreme Court has set aside a Forests Ministry decision to approve a forest licence transfer in Gitanyow First Nation territory, finding that the province had breached its duty to consult with the nation.

The Gitanyow First Nation, whose territories encompass around 6,200 kilometres in northwest B.C., had attempted to buy a forestry licence in its traditional territory after a company that previously held it went bankrupt in 2023.

But the province instead approved the transfer of the licence to the business arm of the neighbouring Kitsumkalum First Nation, whose traditional territories do not overlap with the Gitanyow’s in this instance.

---

B.C. Supreme Court Justice Matthew Kirchner found that the licence was transferred despite binding obligations to consult with the Gitanyow.

He further found that the province had been “simply relying on hope and optimism” that the Kitsumkalum and Gitanyow could reach an agreement in the case.

“I have found the [province] failed to meet its constitutional duty to consult with Gitanyow and potentially accommodate their concerns,” Kirchner wrote.

In B.C., a forest licence refers to the right to harvest timber within a set area, and the forests minister ultimately has wide-ranging powers to grant and refuse licences.

Incorrect email address

Both the Gitanyow and the Kitsumkalum First Nations discussed the licence transfer after the Kitsumkalum’s business arm bought up the bankrupt forestry company’s assets in April 2024.

But the Gitanyow indicated to the province that they were dissatisfied with the extent of those discussions, according to the court decision.

In addition, the court found that the province had failed to respond to a list of concerns in a letter sent by Gitanyow legal counsel in June 2024 — because of an error in entering the recipients’ email address.

“The Kitsumkalum should not be entitled to become the licensee, which would effectively permit them to manage Gitanyow resources in Gitanyow Territory,” reads the letter from Gitanyow legal counsel.

“The imposition of any third party as licensee … whether First Nation or not, negatively impacts reconciliation and will have long-term adverse effects on Gitanyow society, culture, economy and resource management.”

The judge subsequently found that communication logs, provided by the Kitsumkalum to the province, were not sent to the Gitanyow despite assurances to the contrary.

A few months after the licence was bought up, the province told the Gitanyow that they would conclude consultations — with an official saying that the province was “encouraged … and is hopeful that Gitanyow and Kitsumkalum can reach mutually beneficial terms.”

The judge found that the province didn’t consider potential accommodations that could’ve been made in the case, including participating in the Gitanyow-Kitsumkalum negotiations themselves or withholding the transfer until an agreement was reached.

“Rather, it left the matter to Gitanyow to negotiate with Kitsumkalum after the licence transfer was to be approved, knowing that Gitanyow was unhappy with Kitsumkalum’s engagement,” the judgment reads.

Duty to consult

The province argued it satisfied its obligations to consult with the Gitanyow over the transfer, telling the court that the “impacts of the transfer decision on Gitanyow’s interests are ‘minor.'”

But the court found that the province failed to honour previous commitments signed with the First Nation, including an “incremental reconciliation pathway” agreement signed in 2022.

That agreement included a milestone that Gitanyow hold 35 per cent of the annual allowable cut (AAC) area within its claimed territory, referring to the area where it is allowed to legally harvest timber per year.

Kirchner said that while the agreement wasn’t legally binding, it did require the province to “work proactively to maximize the chances of achieving that milestone” — something Gitanyow legal counsel had said would be in jeopardy if Kitsumkalum were granted the licence.

After the Gitanyow’s lawsuit was successful, the forest licence transfer has now been quashed, and the ministry will have to make a fresh decision on the issue and further consult with the Gitanyow.

Joel Starlund, the executive director of the Gitanyow Hereditary Chiefs’ office, said the nation was pleased with the court’s decision.

He said the nation’s discussions with the Kitsumkalum included a potential arrangement where the neighbouring nation would harvest the timber, if needed, while the Gitanyow held the forest licence.

“We have our own laws and we have our own protocols,” he told CBC News. “And it would be a good place to start to get together and acknowledge those and go forward.”