Indigenous Nations clash over overlapping land claims at Canada Supreme Court

MONTREAL (CN) — It’s a first: Three Indigenous Nations in northwestern British Columbia are claiming the same land.

The Nisga’a and Tsetsaut Skii km Lax Ha Nations argued in hearings across Monday and Tuesday to Canada’s Supreme Court that an ongoing title claim made by another nation, the Gitanyow, intersects with their own territories and rights.

They are seeking to be added as defendants in the Gitanyow Nation's lawsuit seeking declarations of Aboriginal rights and title to approximately 6,200 square kilometers of land in northwestern British Columbia.

The Supreme Court’s ruling could set an important precedent, as no clear guidance exists on how a declaration of Aboriginal title for one Indigenous collective affects a subsequent claim by another over the same territory.

“The Nisga’a Nation requests one thing in this appeal: for this court to give effect to an Indigenous nation’s participation right to defend its modern treaty,” said attorney Micah Clark, who represented the Nisga’a Nation.

Clark explained that, at this stage, they do not need to prove exactly how the Nisga’a treaty might be affected — only that the Gitanyow claim triggers a provision in Chapter 19 of the Nisga'a Final Agreement Act, which requires that the Nisga’a government be notified of the judicial proceeding.

As for the Tsetsaut Skii km Lax Ha, their representative, Ryan Beaton, argued that they have a “deeply intertwined history” with the Gitanyow, noting that the territory at the center of the dispute was acquired by the Gitanyow in the 1860s from the Tsetsaut people, the ancestors of the Tsetsaut Skii km Lax Ha.

“Adding the Tsetsaut Skii km Lax Ha brings another perspective on that history, a different account of what happened,” Beaton said.

Filing their title claim within the Gitanyow lawsuit will also help prevent “multiple proceedings and the risk of inconsistent findings and congestion in the court,” he said.

“Why have this proceed in separate rooms when we are talking about the same territory, the same contested history, and the same actors?” he said.

The Gitanyow Nation initially filed its claim in the B.C. Supreme Court in 2003, the case moved into active case management in 2022 after years of inactivity. A year later, the Nisga’a Nation applied to be added as defendants in the Gitanyow lawsuit, arguing that it overlaps with Nisga’a territory and rights, which were officially recognized in 2000 through British Columbia’s first modern treaty.

According to the Nisga’a Nation, the Gitanyow claim triggers the treaty's provisions that require consultation when court actions or government decisions affect Nisga’a treaty lands or rights.

The B.C. Supreme Court ruled it was premature to decide whether the Nisga’a’s statutory rights to participate were triggered and that adding them as defendants would significantly complicate the Gitanyow lawsuit that has already spanned two decades. The Nisga’a appealed, but the B.C. Court of Appeal upheld the lower court ruling.

In parallel, the Tsetsaut Skii km Lax Ha Nation, which has not yet signed a treaty with the province, filed their own application to join the Gitanyow action. Unlike the Nisga’a, they sought both to be added as defendants and to file a third-party claim, allowing them to assert and protect their own Aboriginal title within the same proceeding.

After the B.C. Supreme Court granted both requests, the Gitanyow appealed the decision. The B.C. Court of Appeal upheld Tsetsaut Skii km Lax Ha’s status as defendants but rejected their third-party claim, ruling they were advancing a separate Aboriginal title claim, not seeking indemnity.

If the Supreme Court judges seemed to lean in favor of adding both the Tsetsaut Skii km Lax Ha and the Nisga’a as defendants, they did not appear convinced by the Gitanyow’s argument in defense. 

Justice Michelle O’Bonsawin, notably, seemed skeptical when one of the Gitanyow representatives, Peter Grant, asserted that their declaration of title is only against the Crown, not against any other Indigenous group.

“How can you say that when the Nisga’a argue that 85% of the land in question is land on which they hold exclusive rights? They have created laws, and for your client to have access, they would essentially need permission,” she said. 

The Gitanyow representative said the Nisga’a rights in the Nass Wildlife Area are non-exclusive hunting rights, and that if the Gitanyow are granted a declaration of title, it will then be up to the Nations to either come together and decide to co-manage the area or to negotiate an agreement.

Justice Malcolm Rowe, however, pushed back.

“But why don’t we sort it out now? Before it descends into this procedural morass?” he asked.

“Are we going to cut this into pieces so that it goes on and on and on, and everything is left in this haze of potentially inconsistent decisions? Instead of saying: Everyone puts their cards on the table — yes, it will take a long time, but that’s because it’s complicated!” Rowe said.

One of the Gitanyow representatives also argued that their claim causes no prejudice to the Tsetsaut Skii km Lax Ha — whom he qualified as “an entity never known before 2011,” consisting of “fifty-six people of Gitxsan origins with no right and no title,” effectively challenging the Tsetsaut Skii km Lax Ha’s status as a nation. 

In their memorandum to the court, the Gitanyow also pointed out that Tsetsaut Skii km Lax Ha were inconsistent with their own position in another major case, Delgamuukw v. British Columbia, where they originally claimed a smaller and different territory.

Separately, the provincial and federal governments agreed that both nations should be added as defendants so they could “speak with their own voice” and “control the presentation of their evidence."

However, British Columbia argued that Tsetsaut Skii km Lax Ha’s third-party claim should be dismissed, citing that having their claim filed within the same Gitanyow lawsuit would create procedural prejudice and delays for the Gitanyow Nation that outweigh the benefits to Tsetsaut Skii km Lax Ha.

The federal government took no position on the third-party claim.

The First Nations of the Maa-Nulth Treaty Society, which intervened, emphasized the importance, in the context of reconciliation, of allowing Indigenous Nations that are signatories to modern treaties to participate in cases involving overlapping claims.

Andrew Lokan, representing additional intervenor the Congress of Aboriginal Peoples, said overlapping claims are, in fact, a legacy of colonialism.

“Indigenous societies have been displaced, disrupted, and divided in numerous ways by imperial and Canadian governments over many years. Unsurprisingly, this has led to conflicting claims to territories. As a matter of fairness, other Indigenous groups with historical links to the claimed territory should have the opportunity to contest the plaintiff’s claim,” he said.

Lokan also advocated for a flexible approach to the right of participation, rather than an overly strict or technical one, noting the unique and ever-evolving context of Aboriginal rights and titles.

“The law in this area develops at vertiginous speed,” he said.