Nisgaa Nation awaits Supreme Court of Canada decision on joining Gitanyow Aboriginal title case

The Nisga’a Nation is waiting to hear whether it will be allowed to participate in an Aboriginal title case launched by Gitanyow Nation in northwest B.C. The case was heard by the Supreme Court Dec. 8 and 9. The Gitanyow Nation has long maintained that the land rights granted under the Nisga’a treaty overlap its territory. At issue is a roughly 6200 square kilometer swath of land in northwestern B.C. The Gitanyow first brought legal action in 2003, but the case lay dormant for almost two decades. Canada’s high court agreed to hear an appeal by the neighbouring Nisga’a Nation which is trying to join the case as a defendant alongside Canada and the province. The lawyer for the Nisga’a Nation says the right to participate in aboriginal rights litigation is written into its modern treaty. “If someone is going to establish a Sec. 35 right in litigation that may affect the treaty, then the Nisga’a Nation as a treaty group can at least participate in the litigation and what’s going on in front of the court so they don’t have to sit by and watch,” Micah Clark told APTN News. “What happened in this case is the courts read that right to participate as something much, much less than the treaty parties negotiated. So it was ‘you can’t participate. And even if you can, it’s just making legal argument,’ which was not the deal they (the Nisga’a Nation) had made,” said Clark. “It’s just supposed to make sure that the court has everyone’s Indigenous voice and Aboriginal perspective when they’re deciding what rights actually exist in British Columbia that have constitutional protection. It’s not supposed to affect the rights that are sought to be established by UBCIC members. It’s just supposed to decide who gets to be in court when the courts make these sort of decisions.” “And so it worked its way all the way up to the Supreme Court of Canada to resolve what their treaty actually means.” The Union of B.C. Indian Chiefs intervened in the case. It argued that the province’s treaty process “has fueled territorial boundary disputes by granting land-based treaty rights that infringe the Aboriginal title of neighbouring First Nations.” The Tsetsaut Skii km Lax Ha Nation is also seeking to become a defendant in the case, arguing it also has title to the same piece of land. UBCIC claims the Crown is backing the Nisga’a Nation’s attempt to fight the Gitanyow Nation’s title claim. “The B.C. treaty process has produced only a handful of treaties at tremendous public expense,” UBCIC President, Grand Chief Stewart Phillip Phillip said. “The Crown continues to prioritize its relationships with modern treaty nations at the expense of non-treaty First Nations.” “UBCIC’s biggest focus was making the argument that modern treaty nations should not be guaranteed a place in title cases to fight the Aboriginal title claims of their neighbors,” says UBCIC lawyer Dominique Nouvet, noting that the Gitanyow accepted that “if a modern treaty nation has relevant evidence, they should be allowed to bring that evidence, but they should do that in the limited role of an intervener.” Nouvet says it will ultimately lead to a longer and more expensive legal process for the Gitanyow. Phillip called the Crown’s actions “dishonourable.” The Nisga’a Nation’s treaty came into effect in May 2000. It was a landmark agreement between the nation, Canada and B.C. that recognized the Nisga’a as a self-governing nation as well as its land rights. It was the first modern treaty in B.C. according to Canada. “(They)have a roadmap for going forward and coexisting with those nations, so it can be a more positive relationship. And, of course, the current provincial and federal governments will always have more time for nations that are in favor of those big developments. And, of course, Nisga’a Nation is one of the nations right now that is really favorable to some pretty major resource development. So I think they’ve kind of got two points in their favor there,” said Nouvet. Supporting Nouvet’s assertion is the Nisga’a Nation’s Ksi Lisims Liquefied Natural Gas project which was forwarded to the Major Projects Office for potential fast tracking by the government of Prime Minister Mark Carney in November. Nouvet also said if the case results in a “general rule or an absolute rule” that modern treaty nations will always get to join any Aboriginal title case that could affect their treaty rights, it will make it harder for nations like the Gitanyow to prove their title. “They might have to face an extra defendant and potentially a very well-resourced defendant because, modern treaty nations are sometimes quite well resourced, after entering into those agreements,” he said. The UBCIC chiefs’ council voted unanimously in June to support the Gitanyow in their title case at the Supreme Court. The Nisga’a Nation and the Tsetsaut Skii km Lax Ha Nation are “kind of sending the same message to the Supreme Court…which is we want that court to give us guidance and give everyone guidance in British Columbia and elsewhere of when the court is deciding things that may affect different indigenous groups,” Clark said. “Is it the right thing that all of those indigenous groups get to be in front of the court? And that’s really the question. It’s not about who has rights or who doesn’t. It’s who gets to tell the court their story when the court is being asked to decide certain rights that may inter intersect and interfere with each other.” Continue Reading