Lengthy S. 35 Trials And Access To Justice: Malli v. British Columbia

In January 2024, the British Columbia Supreme Court released the Malli v. British Columbia, 2024 BCSC 85 decision. This case reiterates that lengthy and complex s. 35 trials create an access to justice concern that can be strong enough to counterbalance against arguments to add defendants to a s. 35 action. Moving forward, BC courts are taking seriously the access to justice concerns raised by the burdens of multi-year s. 35 trials, seeking solutions at the early stages wherever possible, such as reducing the number of defendants.

However, with the current tests to prove rights and title requiring lengthy and complex submissions, perhaps this case can act as a signpost that while reducing the number of parties is one way to improve efficiency in small steps, the larger steps may require a broader rethinking altogether.

Background

The Gitanyow Hereditary Chiefs (in their capacity as Chiefs, on behalf of themselves, and on behalf of all members of the Gitanyow Nation) ("the Gitanyow") have brought an action for a declaration of Aboriginal rights and title in northwestern British Columbia. Their action is scheduled for an 84-day trial in October, 2024. The Nisga'a Nation ("the Nisga'a") applied to be added as a defendant, due to overlaps between the Nisga'a's Treaty lands, the Gitanyow's claim area, and provisions of the Nisga'a Treaty.

The Nisga'a made three arguments as to why they should be added as a defendant:

• They argued they hold statutory and Treaty entitlements to appear as a party,
• They argued they ought to be added as a party based on Cowichan Tribes v Canada (Attorney General), 2016 BCSC 1660, and,
• They argued that the Gitanyow's counsel agreed to Nisga'a's participation in the action in 2018 and should not be permitted to retract that position now.

In response to the Nisga'a's application, the Gitanyow narrowed their claim, intending to re-frame it so that Nisga'a rights were no longer engaged. The Gitanyow removed relief sought that would have entitled them to ratify or refuse to ratify previously granted rights and interests (including those of other Indigenous nations) conflicting with their claim area.

The Court's Analysis

The BCSC determined that the Nisga'a does indeed have a statutory right to participate in any judicial proceeding regarding "the interpretation or validity of the Nisga'a Final Agreement" or where "the validity or applicability of any settlement legislation or any Nisga'a law" is raised.¹ However, in this case, the Court saw no remaining issue raised that met these criteria after the Gitanyow re-framed their claim.

As for the Nisga'a's arguments that they ought to be added based on Cowichan Tribes v Canada (Attorney General), 2016 BCSC 1660 ("Cowichan Tribes"), the Court also disagreed. In Cowichan Tribes, the BCSC allowed Tsawwassen First Nation ("TFN") to join as a defendant based on the overlap of its claim between its Treaty lands with the Cowichan Tribes' title claim area. Justice Stephens noted that Aboriginal rights litigation has evolved since Cowichan Tribes, particularly with the decision in Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 ("Kwikwetlem"). In Kwikwetlem, the Court of Appeal declined to add the Attorney General of Canada as a defendant, and invited trial courts to find solutions to the complexity of s. 35 litigation moving forward, to lessen impediments to access to justice in s. 35 trials.²

Justice Stephens held that he is not bound by Cowichan Tribes to add Nisga'a as a defendant as the factual and procedural context is different here, and adding a party is a discretionary decision. He held that considerations arising from overlap between the claim area and Nisga'a Treaty areas and the indirect effect that proof of the Gitanyow's rights and title may have on the Nisga'a Treaty rights are outweighed by: (a) the countervailing strong interest of the Gitanyow's access to justice in the resolution of their claim; and (b) the Gitanyow's choice of how to frame their claim.

Lastly, Justice Stephens was not persuaded that the Gitanyow's position about the Nisga'a's potential party status in 2018 should have any significant bearing on his decision.

Justice Stephens ultimately declined to add the Nisga'a as a defendant at this time.

Access to Justice Concerns

The Gitanyow contended that adding defendants contributes to the sort of lengthy trial experienced in Delgamuukw v British Columbia, 79 DLR (4th) 185 (over 300 days), and Cowichan Tribes (over 500 days), which they wish to avoid. Their concerns were excessive length, complexity, and costs, which would delay their ability to bring their Aboriginal rights and title case to resolution, thereby impeding their access to justice.

Justice Stephens was sympathetic, placing significant weight on the Gitanyow's interest in access to justice and the interest in resolving s. 35 claims in a timely manner. In the end, the Gitanyow's strong interest in access to justice in the resolution of their claim outweighed the indirect effect that proof of the Gitanyow's Aboriginal rights and title may have on the Nisga'a Treaty rights.

This case shows that BC courts are taking concrete steps to try to reduce the length, cost, and complexity of s. 35 trials at the early stages. Reducing the number of defendants where it is not absolutely necessary to have these additional parties present is certainly one way to improve the efficiency of a trial. However, continuing down this path of solutions could be seen as improving access to justice for the claimant party, while potentially risking access to justice for First Nations with overlapping claims. Here, the Court held that both of the existing defendants (British Columbia and Canada) have the capacity and resources to lead the Nisga'a's evidence at trial if necessary. While this may be appropriate for some cases, it is a fine line to walk to ensure all First Nations have a voice in proceedings where their rights may be impacted.

Ultimately, changes are necessary in order to reduce the length, complexity, and associated costs burden of s. 35 trials, or First Nations without the requisite resources to take on these mammoth proceedings will be left without access to justice. Reducing the number of defendants takes one step towards this goal, so long as the courts carefully walk the line of ensuring parties with overlapping claim areas are left with sufficient access to justice too. However, perhaps this case raises a larger issue to the forefront: it is the current tests to prove Aboriginal rights and title that require such lengthy and complex submissions in the first place, in the absence of readily negotiated out of court solutions. While reducing the number of parties is one way to improve efficiency in small steps, the larger steps may require a broader rethinking altogether – in and out of the courtroom.

Footnotes

2 Kwikwetlem First Nation v British Columbia (Attorney General), 2021 BCCA 311 at paras 36-39.

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