A Supreme Court of Canada decision could hamper Aboriginal title litigation 

Eris Ritcey is an associate at Phillips Barristers PC, one of the firms making up the litigation team representing the hereditary chiefs of the Gitanyow Nation in the BC Supreme Court but not in the Supreme Court of Canada

A Supreme Court of Canada decision could hamper Aboriginal title litigation

The Gitanyow have long sought recognition of their title in order to build a lasting relationship with settler society. As their chosen leader, Albert Williams, stated to Prime Minister Wilfred Laurier in 1910: “recognize our title and then we will work together to share the wealth.” After over a century of resisting and persevering, despite government policies designed to eradicate Indigenous culture, and failed negotiations to recognize the Gitanyow authority over the territory in northwestern British Columbia, the Gitanyow Aboriginal title case was finally set to go to trial commencing May 5, 2025. However, on April 24, 2025, the Supreme Court of Canada (SCC) granted leave to appeal on two procedural matters and the trial was adjourned, pending the outcome.

The Gitanyow brought their case against Canada and British Columbia, but two separate decisions about joining additional parties resulted in the appeal to the SCC, brought by two different groups claiming overlaps with the Gitanyow. One of those groups, the Nisga’a, is a long-recognized Indigenous nation which concluded a land-claims agreement (or modern treaty) known as the Nisga’a Final Agreement (NFA) with the Crown in 2000; the Nisga’a are the Gitanyow’s neighbours to the west and south.

The other group calls itself “Tsetsaut Skii km Lax Ha” (TSKLH), which says it is a House group of the Gitxsan Nation – speakers of a Tshimianic language, like the Gitanyow and the Nisga’a. The seminal Delgamuukw case was brought by the Gitxsan Nation. However, TSKLH has, since about 2011, also tried to re-identify itself as “Tsetsaut”, which would make it part of the completely different Athabascan language family, a position that allows TSKLH also to argue that it is not Gitxsan.

The Nisga’a appeal gives the SCC the opportunity to address what role, if any, an Indigenous nation which has signed a modern treaty should play when a neighbouring nation seeks the court’s recognition of its unextinguished Aboriginal title. The TSKLH appeal also gives the Court the opportunity to address how courts should deal with previously unknown groups that have recently begun to self-identify as rightsholders.

In addressing these issues, the SCC may change the way that Aboriginal title cases are litigated in Canada. The risk is that – if the Court accepts the appellants’ arguments – it might burden title litigation with so much complexity and delay that it will effectively deny a nation its best opportunity to obtain judicial recognition of its land rights by making that litigation unworkable.

The alleged overlap with Gitanyow traditional territory

The British Columbia Court of Appeal’s decisions on joinder applications by the Nisg̱a’a Lisims Government (2024 BCCA 313) and TSKLH (2024 BCCA 406) in Malii v. British Columbia provide distinct yet connected examples into how courts are struggling to manage overlapping claims in complex modern Aboriginal title litigation. Both decisions seek to balance judicial efficiency, access to justice, and the right of Indigenous nations to protect and assert their interests in disputed lands before the courts.

The Gitanyow territory, known as the lax’yip, is in northwestern British Columbia. To the west and south of the Gitanyow lax’yip is Nisga’a territory. In 2000, the Nisga’a Nation, Canada and BC entered into the NFA, a modern treaty granting the Nisga’a certain rights as well as title to certain lands, both of which overlap with the Gitanyow lax’yip. The NFA includes a non-derogation clause which provides that nothing in the treaty can adversely affect the constitutionally protected Aboriginal rights of another nation.

The Nisga’a Nation applied to be added as a party to the Gitanyow case based on provisions in the NFA allowing it to join any case where the validity of NFA provisions is at issue. The Nisga’a also applied under the general rules of court to be added as a defendant along with Canada and British Columbia. The Nisga’a brought their application in the months before trial date, although they had known about the Gitanyow title case for several years. Both the trial judge and the BC Court of Appeal refused to add the Nisga’a Nation, but the Nisga’a Nation appealed the decisions to the SCC.

To the north and east of the Gitanyow lax’yip is Gitxsan territory, which was claimed in the seminal Aboriginal title case of Delgamuukw. One of the plaintiffs in Delgamuukw was Skii km Lax Ha, the Gitxsan hereditary chief of the House (also known as a wilp) of Skii km Lax Ha. While the Gitanyow were not a party in Delgamuukw, a number of Gitanyow chiefs testified during the Delgamuukw proceedings in recognition and support of Gitxsan title.

Decades after the SCC decision in Delgamuukw, Darlene Simpson says she is now the hereditary chief of the wilp Skii km Lax Ha but now refers to her House as TSKLH, a group that she sometimes denies is Gitxsan and calls “Tsetsaut” instead, while at other times she asserts that it is both. In this new form, TSKLH claims a territory that is over 900% larger than the territory the wilp Skii km Lax Ha claimed in Delgamuukw. TSKLH’s claims now includes a significant overlap with the Gitanyow lax’yip that was never alleged in Delgamuukw, as well as overlapping much of the territory of its Gitxsan co-plaintiffs in that case, as well as the territory of other Indigenous groups, including the Nisga’a.

Although TSKLH knew about the Gitanyow title action since at least 2017, TSKLH applied only months before trial to be added not just as a defendant along with the federal and provincial governments, but to file its own third-party claim as part of the case: this would allow TSKLH not only to dispute the Gitanyow claim but to advance its overlapping claim against Canada and British Columbia, embedded in the Gitanyow’s litigation. TSKLH was initially successful on both points, but the BC Court of Appeal allowed the Gitanyow’s appeal in part, dismissing TSKLH’s third-party claim as part of the Gitanyow’s litigation but allowing TSKLH to remain as a defendant. The TSKLH appealed the decision to the SCC.

In April 2024, the TSKLH also filed a standalone case asserting title to all its claimed territory: while its proposed third-party claim in the Gitanyow case only concerns its alleged overlap with the Gitanyow, the standalone case seeks title to all of its claimed territory, overlapping the territory of several other nations.

Implications of adding overlapping claims to Aboriginal title litigation

Aboriginal title cases can already take up hundreds of days of trial. Adding other parties will cause both pre-trial delay – such as when new parties bring more preliminary motions – and lead to longer trials. As the Court of Appeal noted in its judgment about TSKLH:

If the Aboriginal title and rights claims 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 claims may take considerably longer. Hearing multiple overlapping Aboriginal title claims in one trial could impair the goal of access to justice for these types of cases. (Malii v. British Columbia, 2024 BCCA 406 at para 101)

In the Gitanyow case, the court has ordered a trial in stages, with 90 days reserved for the issue of Gitanyow title as the first stage. Future stages would include any other Aboriginal rights held by the Gitanyow and the damages owing to them for infringement of their rights and title. After TSKLH was added as a defendant and as the issues for trial became further developed, the first stage of trial was extended to 144 days over ten months. This a relatively modest trial in comparison to Delgamuukw and Tsilhqot’in, which each lasted over 300 days, or Cowichan which took 513 days over five years. The Cowichan case involved a few square miles of territory, with much of the court time consumed by challenges to Cowichan’s case by the other two Indigenous parties. In the Gitanyow case, the risk posed by TSKLH’s third party-claim and its presence with the Nisga’a as additional defendants is that it could increase the length, complexity and cost of the trial to a point that that the Gitanyow’s Aboriginal title and rights litigation would become too unwieldy and expensive.

The Gitanyow first filed their title case in 2003 and started actively preparing for trial in 2014. It will now have taken over ten years to bring the case to trial, just on the issue of title, while the subsequent stages on Aboriginal rights and the Gitanyow’s right to compensation could take even longer. Additional parties inevitably mean additional procedural delay, delaying justice and increasing costs to the point that litigation can quickly become unfeasible for many nations.

The Gitanyow position remains consistent with the position they have held since 1910: they seek recognition of their pre-existing title by the Crown, which is why their proceeding is only against the Crown. The Gitanyow have made it clear to the courts at all levels in the Nisga’a intervention that if they are successful in proving title, the Gitanyow are not seeking to alter the Nisga’a Final Agreement. The issue of how to reconcile Gitanyow title and Nisga’a treaty rights, if necessary, is a matter for the Indigenous nations to resolve – if they cannot resolve the issue under their own laws, it will be a separate issue for the court, independent of the Crown’s recognition of Gitanyow title.

The upcoming Supreme Court of Canada decision on the joinder appeals in Malii v. British Columbia, no matter the result, will significantly reshape Aboriginal title litigation. While the rights of overlapping claimants must be respected, there is a growing and pressing need to balance those interests against access to justice, judicial economy, and the practical realities of litigating complex Aboriginal title and rights claims. The Gitanyow’s case exemplifies how the addition of overlapping parties, especially those with tenuous or vastly expanded claims, can prolong litigation, escalate costs, and frustrate long-awaited efforts by Indigenous nations to have their title recognized.

If the SCC endorses an overly expansive approach to joinder for Aboriginal title cases, it risks creating a precedent that entrenches delay and procedural entanglement as defining features of Aboriginal title litigation. Such an outcome would not only undermine reconciliation but could effectively deny Indigenous nations a meaningful path to the recognition and restoration of their rights. In the case of the Nisg̱a’a, should a nation which signed a modern treaty automatically be permitted to join the title action of another when the agreement specifically provides it will not affect other nations’ rights and title? Should TSKLH, a group of “recent vintage” with an expanding claim based on changing notions of ancestry, be granted standing to participate both a defendant and a third-party claimant?

Understanding the two decisions under appeal

Nisg̱a’a Nation v. Malii, 2024 BCCA 313

The case-management judge and the Court of Appeal both concluded that the Nisg̱a’a Nation, as a party to a modern treaty with Canada and British Columbia (the Nisg̱a’a Final Agreement, 2000), did not show it had a direct legal interest in the Gitanyow’s case and held that the case did not engage the Nisga’a Nation’s right under the NFA to participate in any case where its treaty rights are at issue.

Both courts found that the Gitanyow’s pleadings did not challenge the NFA itself, nor did they ask the court to recognize Gitanyow rights or title that would potentially conflict with Nisga’a lands or treaty rights. The courts noted that the NFA provides for the possibility that another Indigenous group such as the Gitanyow might obtain judicial recognition of rights that conflict with Nisga’a rights under the NFA.

The courts emphasized judicial efficiency and proportionality, warning against unnecessarily complicating the proceedings. Notably, the Court of Appeal reaffirmed that Gitanyow’s access to justice and litigation efficiency took precedence over including all parties with potentially conflicting claims in Aboriginal title litigation.

Malii v. British Columbia, 2024 BCCA 406 (CanLII)

Unlike the Nisga’a, TSKLH is not a treaty nation and its claims have not been recognized by any government or Indigenous nation. TSKLH asserted overlapping Aboriginal title to much of the same territory claimed in the Gitanyow’s action and therefore applied not just to join the case as a defendant but also to file a its own third-party claim within that case for title to the overlapping territory, brought against the Crown but not the Gitanyow. Unlike the Nisg̱a’a, TSKLH did not rely on existing treaty rights but asserted a directly competing claim with Gitanyow title.

The Court of Appeal upheld adding TSKLH as a defendant because of the Gitanyow’s obligation to show they had occupied their territory exclusively in order to prove title: the court held this gave TSKLH a direct legal interest in the outcome based on its overlapping claim. However, the Court of Appeal reversed the case-management judge’s decision to allow TSKLH to argue its own third-party claim in the Gitanyow’s case because:

• The third-party claim would cause significant procedural delay, increase costs, and therefore harm the Gitanyow’s right to a timely hearing.
• Combining two full Aboriginal title actions – each requiring extensive evidence – would make the litigation more complex.
• Complex Aboriginal title litigation strains court resources and piling claims together could result in unwieldy and ineffective proceedings.
• TSKLH’s rights could be sufficiently protected without a third-party claim, through participation as a defendant and by TSKLH’s standalone claim to the same territory it filed against the Crown.

The court took into account that Aboriginal title litigation can be extraordinarily time-consuming, complex, and expensive, warning that it can consume vast resources over decades, and emphasized the need to manage cases in a way that supports reconciliation and avoids delay.

The decisions demonstrate a balanced approach to Aboriginal title litigation. Where the Nisg̱a’a Nation’s treaty rights were not directly implicated, adding the Nisga’a as a party was found to be unnecessary. On the other hand, the Court of Appeal found that TSKLH had a title claim that warranted participation as a defendant but that did not justify allowing TSKLH to make its own third-party claim part of the Gitanyow’s case.