Overview
On April 24, 2025, the Supreme Court of Canada (SCC) granted leave to hear two related cases that raise issues of how courts should address claims in which the Aboriginal rights and title of two or more Indigenous groups may overlap: Nisga’a Nation v. Malii, 2024 BCCA 313 (the Nisga’a Application) and Malii v. British Columbia, 2024 BCCA 406 (the TSKLH Application).
Both cases were applications in the same underlying action (the Action) in which Gitanyow Nation seeks a declaration of Aboriginal rights and title to an approximately 6,200 square kilometre area located in northwestern British Columbia (the Claim Area).
Overlapping claims of Aboriginal title raise complex legal and factual issues that have yet to be fully determined by the courts. The law provides that once Aboriginal title is established, governments and others seeking to use the land must seek the consent of the title holders.[1] Consequently, competing title claims raise important issues regarding the use and control of land, and the exclusivity of such use and control.
Nisga’a application
Nisga’a Nation (Nisga’a) applied to be added as a defendant to the Action because it holds treaty rights to geographic areas that partially overlap with the Claim Area. Its treaty rights are pursuant to the Nisga’a final agreement entered into among Canada, British Columbia, and Nisga’a (the Nisga’a Treaty), and which became effective in 2000.
Among other things, the Nisga’a Treaty designates certain lands that overlap with the Claim Area as Nisga’a Lands that are owned by Nisga’a in fee simple. This creates a fundamental tension with the Gitanyow Action which seeks to establish Aboriginal title because one of the elements of the test for Aboriginal title requires the applicant to prove exclusive historic occupation of the land (which is understood in the case law as an intention and capacity to control the land).[2]
Nisga’a argued that it should be made a defendant in the Action pursuant to either the terms of the Nisga’a Treaty and its implementing legislation or the rules of civil procedure.
The Nisga’a Treaty (and its implementing legislation[3]) grants Nisga’a the right to be a party in judicial or administrative proceedings when issues raised by the parties implicate the interpretation or validity of the Nisga’a Treaty (the Party-Conferring Provisions). However, the British Columbia Courts interpreted the Party-Conferring Provisions narrowly as only allowing a right to be heard on specific issues regarding the interpretation, validity or applicability of the Nisga’a Treaty, and not a right to be heard any time a right or interest could be affected by a proceeding.[4]
Gitanyow had recently amended its claim to exclude relief that would implicate the Nisga’a Treaty and sought only to resolve the issue of title as against the Crown. Based on these amendments, the Courts found that the Party-Conferring Provisions were not engaged. However, a process was put in place to determine at a later time whether the Action had evolved so as to directly implicate the Nisga’a Treaty.
Nor was Nisga’a entitled to be added as a defendant based on the rules of civil procedure. Among other things, Nisga’a argued that it had relevant evidence about whether the Gitanyow could establish sufficient, continuous and exclusive use of the Claim Area for the test for Aboriginal title. The case management judge found that British Columbia and Canada could lead this evidence from Nisga’a witnesses, if relevant at trial. British Columbia and Canada had both taken no position on the application before the case management judge and so, despite making submissions on appeal that raised concerns with the appropriateness of the Crown leading such evidence, the British Columbia Court of Appeal (BCCA) found no reversible error in the case management judge’s decision.
TSKLH application
Chief Darlene Simpson applied on behalf of herself and Tsetsaut/Skii km Lax Ha Nation (TSKLH) to be added as a defendant to the Action and to file a third-party claim against the Crown within the Action to advance TSKLH’s own claim for Aboriginal title and rights over the same territory as the Gitanyow Claim Area. While the case management judge granted both applications, on appeal, the BCCA denied the third-party claim and only allowed TSKLH to be added as a defendant.
TSKLH asserts Aboriginal title over a large territory which substantially overlaps with Gitanyow’s Claim Area. It applied to become party to the proceedings on the basis that it is necessary for its overlapping claim to Aboriginal title to be determined together with Gitanyow’s claims.
Courts have yet to determine the legal impacts of a declaration of Aboriginal title on other claims of Aboriginal title and rights within the same geographic area — but the BCCA noted that one possible impact is it could exclude another Indigenous group from holding Aboriginal title over the same area.[5] The concern that a declaration of Aboriginal title in the Gitanyow Action may cause irreparable prejudice to TSKLH’s claim of Aboriginal title was one of the key reasons that TSKLH was added as a defendant to the Action.
In contrast, on appeal, TSKLH was denied the right to bring a third-party claim. The third party claim would have allowed TSKLH to advance its overlapping claim to Aboriginal title and rights within the Gitanyow Action. The BCCA denied the application because, among other things, it found the additional delay and complexity would significantly prejudice the Gitanyow Action. Noting that Aboriginal title and rights claims are “extraordinarily time-consuming, complex, and expensive”, often requiring hundreds of days of trial time,[6] the BCCA was concerned that joining two Aboriginal title and rights claims within the same action would introduce inordinate complexity that would prejudice a just determination of the claims. Further, TSKLH had delayed in bringing its third-party claim (and is advancing its own independent action for Aboriginal rights and title), and so, the BCCA found that the balance of convenience weighed in favour of allowing the Gitanyow Action to proceed with TSKLH joining as defendant only.
The Supreme Court of Canada (SCC)
The hearing of an appeal before the SCC typically takes approximately eight to nine months following the granting of leave. The Gitanyow Nation has applied to expedite the appeals so they may be heard sooner. A written decision would follow sometime after the appeal is heard.
These cases will require the SCC to grapple with how overlapping Aboriginal rights and title claims should advance through the court system in a manner that is procedurally and substantively fair. Answering these threshold issues will have implications for the ultimate resolution of competing claims, as it will determine, among other things, the issues and evidence before the court.
Ultimately, competing title claims require the courts to grapple with complex issues regarding the nature of Aboriginal title, such as whether a declaration in favour of one Indigenous group is incompatible with another Indigenous group’s claim over the same area. This, in turn, will affect other land users as it will determine who may exercise control over land, and how competing interests are to be balanced.
[1] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, para 76. Aboriginal title is sui generis or unique so, while it confers a right to proactively use and manage the land and the right to control the uses to which land is put, it is not equivalent to traditional property concepts, such as fee simple. The Crown may still infringe on Aboriginal title even in the absent of consent under certain circumstances.
[2] Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, paras 47-48.
[3] See Nisg̱a’a Final Agreement Act, S.B.C. 1999, c. 2, s. 8(1); Nisg̱a’a Final Agreement Act, S.C. 2000, c. 7, s. 20(1).
[4] Nisga’a application, 2024 BCCA 313, para 47.
[5] TSKLH application, paras 68, 69, 73.
[6] TSKLH Application, para 97.
