B.C. court overturns forest licence transfer after ruling Gitanyow First Nation was not properly consulted

The British Columbia Supreme Court has set aside a provincial decision to transfer a forest licence in northwest B.C., ruling that the government failed to properly consult with the Gitanyow First Nation.

The ruling stems from a decision by the province’s Forests Ministry to approve the transfer of a forest licence to the business arm of the Kitsumkalum First Nation, despite the licence covering territory claimed by the Gitanyow.

The Gitanyow, whose traditional lands span roughly 6,200 square kilometres in northwest B.C., attempted to purchase the licence after the previous holder went bankrupt in 2023. Instead, the province approved the transfer to Kitsumkalum, whose territory does not overlap with the licence area in question.

Justice Matthew Kirchner found that the province breached its constitutional duty to consult with the Gitanyow and failed to exercise due diligence before approving the transfer.

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

The court ruled that the government relied too heavily on the assumption that the two First Nations would resolve the issue on their own, describing the province’s approach as “simply relying on hope and optimism” rather than active engagement.

Forest licences in B.C. grant the right to harvest timber within a defined area, with final approval resting with the provincial forests minister.

Consultation breakdown
Court records show that discussions between Gitanyow and Kitsumkalum began after Kitsumkalum’s business arm acquired the bankrupt forestry company’s assets in April 2024. Gitanyow later raised concerns about the scope and quality of those discussions.

Compounding the issue, the province failed to respond to a formal letter from Gitanyow legal counsel outlining those concerns. The court found this was due to an incorrect email address entered by provincial staff.

The judge also found that communication logs shared with the province by Kitsumkalum were not passed along to the Gitanyow, despite assurances that they would be.

In June 2024, provincial officials told Gitanyow they intended to conclude consultations, stating they were encouraged by negotiations between the two nations and hopeful an agreement would be reached.

Kirchner ruled that this approach fell short of the province’s obligations. He said the government failed to consider meaningful accommodations, such as delaying the licence transfer or directly participating in negotiations between the two First Nations.

“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 decision states.

Agreements and reconciliation
The province argued the impacts of the transfer on Gitanyow interests were minor and that consultation requirements had been met. The court rejected that argument.

Kirchner also pointed to a 2022 “incremental reconciliation pathway” agreement between the province and Gitanyow, which included a milestone goal of Gitanyow holding 35 per cent of the annual allowable cut within its claimed territory.

While the agreement is not legally binding, the judge ruled it required the province to work proactively toward that goal — something Gitanyow argued would be undermined by transferring the licence to another nation.

As a result of the ruling, the forest licence transfer has been quashed. The Forests Ministry must now make a new decision and re-engage in consultation with the Gitanyow.

Gitanyow leaders welcomed the decision. Joel Starlund, executive director of the Gitanyow Hereditary Chiefs’ office, said the ruling affirms the nation’s laws and protocols.

“We have our own laws and we have our own protocols,” he said. “This is a good place to start — acknowledging those and moving forward together.”