In Malii v. British Columbia, 2024 BCCA 406, released on Dec. 5, Justice Susan Griffin found that the case management judge did not consider the additional delay and complexity that would result if the proposed third-party claim were allowed to advance.
“He overlooked how this would add significantly to the prejudice to the Gitanyow Nation, by increasing the complexity, length and cost of the litigation in orders of magnitude greater than simply adding the TSKLH as a defendant,” the judge wrote.
The decision is one of the first instances of the court tackling the procedural details of how overlapping claims of Aboriginal title will be litigated, said Ryan Beaton of Ottawa-based Juristes Power Law, counsel for the respondent.
“There's a lot that will flow from this," he told Law360 Canada. "Whether we hear from the Supreme Court of Canada on it or whether the Court of Appeal’s decisions are final, we're beginning to see the courts for the first time tackle the nitty-gritty details of procedure for these kinds of overlapping claims,”
The appellants, the hereditary chiefs of the Gitanyow Nation on their own behalf and on behalf of all members of their nation had in 2003, filed an action seeking declarations of Aboriginal title and Aboriginal rights to an approximately 6,200-square-kilometre territory located in northwestern British Columbia.
The province and Canada, both of which were named as defendants, pleaded, among other things, that the Gitanyow Nation did not sufficiently, exclusively and continuously occupy all of the claim area in a way that meets the test for Aboriginal title.
They also pleaded that there were competing claims by other Indigenous groups over the same territory.
After the initial filing of the action, the Gitanyow Nation’s claim was reinvigorated in April 2016.
In July 2022, Chief Darlene Simpson of the Tsetsaut/Skii km Lax Ha Nation (TSKLH) filed an application for joinder as a defendant and to bring a third-party notice.
In an affidavit, Chief Simpson asserted that there are approximately 55 members of the TSKLH.
Prior to the hearing of the application, Chief Simpson filed a separate notice of civil claim on behalf of the TSKLH, seeking a declaration of Aboriginal title and rights to a broad area well beyond the boundaries of the Gitanyow claim area.
The Gitanyow Nation opposed the TSKLH’s application and suggested that the TSKLH could be made an intervenor with rights to call evidence that might challenge the Gitanyow Nation’s claims, but submitted that it should not be given full party status as this would likely delay the trial.
In Malii v. British Columbia, 2024 BCSC 1432, a case management judge allowed the TSKLH’s application to be joined as a defendant and to advance its own third-party claim against the provincial and federal Crown for declarations of Aboriginal title and rights.
The Gitanyow Nation appealed the decision taking the same positions as it took before the lower court.
The appellant submitted that the case management judge erred by giving too much weight to the fact that both First Nations had competing claims over the same territory.
The Gitanyow Nation also argued that the case management judge erred in giving insufficient weight to the delay in bringing the joinder application and the increased complexity of the litigation created by adding the TSKLH as a defendant.
Justice Griffin observed that there was good reason to be concerned that a finding that the Gitanyow Nation has Aboriginal title or rights over the claim area may be incompatible with the TSKLH’s claim over the same area.
The judge noted that at least one possible interpretation of the law is that a declaration of Aboriginal title (or possibly even Aboriginal rights) by one Indigenous group over a particular territory necessarily excludes any other Indigenous group from holding Aboriginal title over the same area.
She noted findings from case law that Aboriginal title is an exclusive right to the use and occupation of land, i.e., to the exclusion of both non-Aboriginals and members of other Aboriginal nations.
“If the TSKLH is not able to defend against the Gitanyow Nation’s claim to Aboriginal title and rights, there is a real risk of serious and potentially irreparable prejudice to its overlapping claims of Aboriginal title and rights,” the judge wrote.
She held that the case management judge’s decision to allow the joinder application was “a sound and practical decision in the circumstances.”
However, the court noted that the case management judge did not consider the additional delay and complexity that would result if TSKLH were permitted to advance its third-party claim.
The judge observed that it is extraordinarily time-consuming, complex and expensive for First Nations to prove through litigation the historic uses and exclusive occupation of territory, as well as modern-day successorship, that form the basis of Aboriginal title claims.
She further noted that when there are too many issues in a single proceeding, it becomes unwieldy and risks yielding an unsatisfactory outcome for all participants, including the courts.
“If the Aboriginal title and rights claims of one Indigenous collective can take hundreds of days of hearings at trial, and years to work through the appellate process, it is obvious that joining it with another Indigenous collective’s Aboriginal title and rights claims may take considerably longer,” she wrote.
She held that when the time TSKLH had taken to bring its application was added to this context, the balance of convenience tilted significantly in favour of the Gitanyow Nation’s position opposing the third-party claim.
The court held that the most practical way to balance the prejudice to the Gitanyow Nation and the TSKLH was to permit the TSKLH to be added as a defendant only, and not to permit it to advance a third-party claim.
Justice Griffin set aside the case management judge’s order allowing Chief Simpson on behalf of TSKLH to bring a third-party claim in the proceeding.
Justices G. Bruce Butler and W. Paul Riley concurred in the decision.
Counsel for the appellants, David Schulze of Dionne Schulze, said that the decision essentially says that nations with overlapping claims that look serious may well be allowed to take part as parties in such proceedings.
“They will be able to take part in order to contest the claim that the plaintiff nation is making. But if they want to bring in the affirmative claim, that will not be allowed to slow down the original action,” he told Law360 Canada.
Schulze did add, however, that this may not be an absolute rule as the court had, in the case at bar, noted the considerable delay caused by TSKLH.
Peter Grant of Peter R. Grant Law Corporation and Maryse Décarie-Daigneault of Dionne Schulze also acted as counsel for the appellants.
Mark Power and Madelaine Mackenzie of Juristes Power Law also acted as counsel for the respondent.
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