Overview
On December 5, 2024, the Court of Appeal for British Columbia (the “Court”) issued its decision in Malii v. British Columbia, 2024 BCCA 406 (“Malii”). This appeal dealt with whether Tsetsaut/Skii km Lax Ha Nation (“TSKLH”) should be allowed to bring a third-party claim and be added as a defendant in the Gitanyow Nation’s Aboriginal title and rights claim. The central issue considered by the Court was how to approach overlapping claims of Aboriginal title. The Court ultimately determined that the Gitanyow Nation’s claim should proceed with TSKLH added as a defendant but not as a third-party claimant.
Background
The claims in Malii involve one of the claimants from the Supreme Court of Canada’s ruling in Delgamuukw v. British Columbia, 1997 3 S.C.R. 1010 (“Delgamuukw”). One of the hereditary chiefs bringing a claim in Delgamuukw was Skiik’m Lax Ha (John Wilson), who sued on behalf of the House of Skiik’m Lax Ha (now TSKLH) for an Aboriginal title claim adjacent to, but not overlapping, the geographic territory of the Gitanyow Claim Area. A new trial was ordered after Delgamuukw in 1997 but was never commenced, and TSKLH’s Aboriginal title claim remains unresolved.
In 2003, the Gitanyow Nation filed the underlying action in Malii, seeking declarations of Aboriginal title and Aboriginal rights to the Gitanyow Claim Area. After the initial filing, the Gitanyow Nation’s claim was reinvigorated in 2016. In May 2018, Chief Simpson on behalf of the TSKLH filed an application to become a defendant and to bring a third-party notice. On April 26, 2024, prior to the hearing of this application, TSKLH filed a separate notice of civil claim seeking a declaration of Aboriginal title and rights to a broad area that overlaps with but goes well beyond the Gitanyow Claim Area.
The Underlying Decision
The case management judge in Malii added TSKLH as both a third-party claimant and a defendant in the Gitanyow Nation’s claim. His reasoning for both of these positions was based on TSKLH’s assertions of Aboriginal title to significant portions of land in the Gitanyow Claim Area. In his view, this gave TSKLH a direct and precise interest in the outcome of the proceedings in the Gitanyow Nation’s claim. Additionally, in his view, failing to add TSKLH as a third-party claimant would likely result in a multiplicity of proceedings and risk contradictory findings.
The Court of Appeal Tackles Overlapping Aboriginal Title Claims
The Court of Appeal agreed in part with the judge below. The Court of Appeal undertook an analysis which weighed the relative prejudice to each party and found that on balance, the Gitanyow Nation would be more severely prejudiced by the delays caused by the addition of TSKLH’s third-party claim than TSKLH would be by the claim’s exclusion. The Court acknowledged that since Delgamuukw, it remains extraordinarily time-consuming, complex, and expensive for First Nations to prove Aboriginal title through litigation. The Court reasoned that if an Aboriginal title and rights claim of one Indigenous collective can take hundreds of days of hearing 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 claim may take considerably longer.
Further, the Court held that had the case management judge considered the duplicative nature of the TSKLH’s separate claim for Aboriginal title and their proposed third-party claim in the Malii action, he would have concluded that it is far better that all of TSKLH’s claims of Aboriginal title and rights be heard together in TSKLH’s separate action, to avoid the risk of duplication and inconsistent findings.
Finally, the Court held that the case management judge failed to acknowledge the practical burdens on the trial judge if TSKLH's third-party claim was added. The trial judge would be forced to determine the issues of historic successorship, exclusive occupation, effective control, and integral connection to culture of two Indigenous collectives in the same action. The Court found that this risked denying access to justice for the Gitanyow Nation. It was remarked that addressing two Aboriginal rights and title claims in one action would be a challenge for one judge to take on in a trial, no matter how capable the judge.
Ultimately, the Court held that adding TSKLH as a defendant is sufficient to protect TSKLH’s interests in claiming Aboriginal title and rights over the same territory as the Gitanyow Nation.
Implications
Complexity is inherent in Aboriginal title litigation. The Court’s decision in Malii signals that this complexity is augmented when dealing with overlapping claims for Aboriginal title.
The Court discussed the impact of one First Nation’s claim for rights and title on neighbouring nations’ claims, noting that the requirement that Aboriginal title be exclusive could mean even a successful claim of Aboriginal rights might foreclose a future Aboriginal title claim. The Court noted that: “The full legal implications of a declaration of Aboriginal title on other property rights and on competing claims to Aboriginal title and rights is not yet known. However, 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.”
Overlapping claims pose many novel questions, and, as the Court stated:
[73] There is currently no clear precedent that answers how a court’s declaration of Aboriginal title for one Indigenous collective might affect a subsequent lawsuit by a different Indigenous collective claiming Aboriginal title over the same territory. Would the second group be precluded from proving it had exclusive occupation over that area? Would the findings from the first trial bind the Crown as against the second Indigenous collective? Would the second Indigenous collective need to, or be able to, establish that the first Indigenous collective consented to it sharing title or exercising Aboriginal rights with the territory? Would the first Indigenous collective who succeeds in establishing Aboriginal title or rights have to defend successive litigation brought by other groups claiming Aboriginal title, potentially never achieving any finality?
There are many questions that remain to be determined in the context of overlapping claims – but it is clear that the Court of Appeal is concerned that the effects could be significant.
While many questions remain unanswered, the Court has made clear that each Indigenous collective seeking a declaration of Aboriginal title should be prepared to do so through its own independent action.
