By Anne Fontaine*
I. INTRODUCTION
Recent Aboriginal title cases have raised the question of how trial courts should approach overlapping claims of Aboriginal title. For the first time, the Supreme Court of Canada is expected to provide guidance on the issue following a two-day joint hearing[i] of the appeals of the Tsetsaut Skii km Lax Ha Nation (the “TSKLH Nation”)[ii] and of the Nisga’a Nation,[iii] both having sought to be joined to the Aboriginal title and rights action of the Gitanyow Nation (the “Malii action”).[iv] The TSKLH Nation appealed the British Columbia Court of Appeal decision which had previously removed the TSKLH Nation as a third party claimant, but left the TSKLH Nation as a defendant, in the Malii action (the “BCCA joinder order”).[v] Pending the Supreme Court of Canada’s decision on the issue, we thought it useful to provide an analysis and some reflections on the BCCA joinder order. This case commentary argues that the Court of Appeal wrongly removed the TSKLH Nation as a third-party claimant in the Malii action. By overturning the case management judge’s decision, the Court of Appeal not only 1) wrongly substituted its own decision for that of the case management judge who was in a better position to assess the TSKLH Nation’s request, but 2) it did so without considering the uncertainty it would create in the procedural framework of Aboriginal title litigation.
A. Factual Context
The plaintiffs in the Malii action are eight hereditary chiefs who seek, on behalf of the Gitanyow Nation, a declaration of Aboriginal title and rights over a territory located in northwestern British Columbia (the “Gitanyow claim area”). The Malii action was commenced in 2003. The TSKLH Nation, represented by its hereditary chief, Chief Simpson, sought its own declaration of Aboriginal title and rights over its territory, the southern part of which overlaps with the Gitanyow claim area (the “overlap”). The TSKLH Nation therefore sought to be added as a defendant and to advance a third party claim against the Province and Canada seeking its own declaration of Aboriginal title and rights in the Malii action (limited to the area of overlap between the Gitanyow and TSKLH Nation claims); the TSKLH Nation was joined to the Malii action as a defendant and as a third party claimant in August 2024 following the hearing of its application (the “BCSC joinder order”).[vi] The Gitanyow Nation appealed the BCSC joinder order, and in December 2024, the Court of Appeal reversed part of the case management judge’s decision by removing the TSKLH Nation’s third party claim from the Malii action.[vii] In April 2025, the Supreme Court of Canada granted the TSKLH Nation leave to appeal the BCCA joinder order.[viii] The hearing was held from December 8–9, 2025, along with the appeal of the Nisga’a Nation who had separately sought to be added to the Malii action as a defendant, on the basis that the Nisga’a Nation has modern treaty rights overlapping with the Gitanyow claim area.
B. Legal Issues
On appeal of the BCSC joinder order, four questions were before the Court of Appeal. For the purpose of this case commentary, the question of central importance was whether the case management judge erred in allowing the TSKLH Nation to advance a third-party claim in the Malii action. The Court of Appeal found that the case management judge had wrongly permitted the TSKLH Nation to advance a third party claim on the basis that the case management judge “did not consider the additional delay and complexity that would result if TSKLH were permitted to advance its third party claim.”[ix] It concluded that permitting the TSKLH Nation to stay on as a defendant in the Malii action was “sufficient to protect the TSKLH’s interests in claiming Aboriginal title and rights over the same territory.”[x]
II. ANALYSIS
While the Court of Appeal pointed out that adding a party to an existing Aboriginal title claim may add some length and complexity to the proceedings, this consideration should not frustrate the adequate protection of defendant First Nations’ rights in the context of overlapping Aboriginal claims, especially in cases of non-treaty First Nations.[xi] As the majority of British Columbia remains unceded, and subject to only few modern treaties ratified in the 21st century, enabling First Nations with unresolved claims for Aboriginal title and rights to participate is essential to uphold the principles of procedural fairness.[xii] This inclusion ensures that the process is equitable and thorough, and it precludes further relitigation of the issues.
A. The Importance of Discretionary Case Management Powers
By overturning the case management judge’s decision to permit the TSKLH Nation to be added as a third-party claimant in the Malii action, the Court of Appeal wrongly substituted its own conclusion for that of the case management judge, contrary to the high degree of deference owed to the case management judge’s decision. In identifying the standard of review applicable to the case at bar, the Court of Appeal specifically recognized that “[a] discretionary decision of a case management judge in a complex case is entitled to a heightened degree of deference”.[xiii] The Court of Appeal added that “[m]ore specifically, the decision to add a party to a proceeding or to allow a third-party claim is discretionary and entitled to deference on appeal”.[xiv]
In its reasons, the Court of Appeal criticizes the case management judge for failing to give enough weight to the added complexity and time that would result from adding the TSKLH Nation as a third-party claimant in the Malii action.[xv]However, the case management judge’s reasons, read as a whole, illustrate that they appropriately weighed these factors and was alive to the consequences of adding the TSKLH Nation to the Malii action. Indeed, in his analysis of the addition of the TSKLH Nation as a defendant, the case management judge specifically notes that he is “cognizant of the impact that adding the TSKLH Nation as a defendant may have on the conduct of this action and its potential complexity”[xvi]but concludes that “those considerations are outweighed by the strong necessity and the interests of justice in having both the TSKLH Nation’s and the plaintiffs’ claim to Aboriginal rights and title over the same geographic area determined in the same action”.[xvii] It is clear that the case management judge was alive to the consequences that adding the TSKLH Nation would have on the litigation process in the Malii action, both as a defendant and as a third party claimant. In the absence of any indication that the case management judge “failed to give weight, or sufficient weight, to [these] relevant considerations,” the Court of Appeal should have refrained from overturning the case management judge’s decision.[xviii]
B. The Need for Certainty in the Procedural Steps of Aboriginal Title Litigation
Not only did the Court of Appeal fail to give appropriate deference to the case management judge’s decision, but the Court also seems to have lost sight of the need to develop a coherent and practical approach to the litigation of overlapping Aboriginal title claims. Here, too, the case management judge was best positioned to develop such an approach tailored to the specific context and circumstances of the case before them, and which they could adjust as needed through their ongoing powers as case management judge.
By removing the TSKLH Nation’s third-party claim from the Malii action, the Court of Appeal effectively removed the ability of the case management judge to deal with Aboriginal title over the overlap in a single proceeding. Removing the third-party claim could lead to great uncertainty in the procedural steps since, in the event the TSKLH Nation provides a successful defense against the Gitanyow Nation’s assertion of title, the question of who holds title over the overlap would still remain unresolved. Without the third-party claim, the court would be unable to determine if the TSKLH Nation has title within the Malii action, raising the spectre of serial litigation, with the TSKLH Nation having to pursue its own declaration of title and rights in a separate, or even parallel proceeding—one which the Gitanyow Nation would presumably seek to join in turn as a defendant. This way of proceeding would be against the interests of justice as it would create an unpredictable, duplicative piecemeal approach.
On the other hand, if the courts recognize the importance of dealing with competing claims in a single forum, this would enable the courts to assess whether competing claims could be reconciled through, for example, declarations of joint title, and to have before them a full evidentiary record on the question of exclusive use and occupation of the territory at the relevant times.[xix] This is something the case management judge was alive to, although they appreciated the risk of bifurcating the TSKLH Nation’s claim, and concluded that it would be more efficient to hear the Gitanyow Nation and the TSKLH Nation’s claims together in the Malii action.[xx] Further, an approach to overlapping claims that engages all stakeholders is beneficial for all parties. Such an approach may be encouraged outside of litigation, such as in the context of negotiations with the Crown and is responsive to the courts’ consistent encouragement for negotiated resolutions.
Contrary to the analysis of the Court of Appeal,[xxi] in our view, the TSKLH Nation’s position as a defendant only in the Malii action is insufficient to truly protect its interests in advancing its own claim for Aboriginal title and rights. As a defendant in the Malii action, the TSKLH Nation is limited to providing a defense against the Gitanyow Nation’s assertion of Aboriginal title and is unable to fully develop its own claim to title in the overlap, and may be unable to test relevant evidence of the Crown co-defendants. Proceeding in this fashion fails to recognize that in the event a plaintiff First Nation is successful in advancing its Aboriginal title claim, defendant First Nations may never have the opportunity to fully present their claims in court, as their own claims in the overlapping area may be barred due to the application of the doctrine of res judicata.
As “[c]laims of Aboriginal title and rights are some of the most difficult and complex to litigate”,[xxii] it would be highly inefficient to litigate a First Nation’s claim of Aboriginal title and rights without incorporating the tools enabling defendant First Nations to advance their own Aboriginal title and rights claims over the relevant contested territory, as this would risk a duplication of “difficult and complex” litigation.
Removing the TSKLH Nation’s third-party claim at best only partly defers the need to fully address the questions of successorship and other matters relevant to establishing the TSKLH Nation’s Aboriginal title and rights claims, which the Court of Appeal thought may be excluded. However, the Court of Appeal itself finds that issues related to the TSKLH Nation’s successorship, cultural connection, Indigenous laws, and practices “will likely arise, and may require some findings…in defence of the Gitanyow Nation’s claims.”[xxiii] Moreover, the case management judge was, again, best positioned to assess the extent to which all of these successorship and other issues would have to be decided in the Malii action even if the TSKLH Nation was present only as a defendant. It would therefore be more efficient to test the TSKLH Nation’s evidence on its own title claim in the Malii action, as much of this evidence will be relevant and will have already been raised in the TSKLH Nation’s defense of the Gitanyow Nation’s claims.
III. CONCLUSION
First Nations who are found to have a valid interest in part of a territory that overlaps with that of a claimant First Nation should be given the tools to assert their title in that same proceeding. Although doing so may add some length and complexity to an existing action, this will ultimately avoid the risk of an inefficient multiplicity of proceedings and contradictory findings. As litigants increasingly advance overlapping Aboriginal title claims, courts should be mindful when ruling or reviewing matters that might set a restrictive precedent in difficult and complex Aboriginal litigation, and should aim to establish an efficient procedural framework.
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* Anne Fontaine is a graduate from the Programme de common law en français from the University of Ottawa. She now practices civil litigation, mainly in Aboriginal law. Her interests are in constitutional law, minority rights and language rights. She wishes to thank Ryan Beaton and Madelaine Mackenzie for their valuable feedback and insightful comments on this blog post.
[i] The hearing of the appeal of the TSKLH Nation was jointly heard with the appeal of the Nisga’a Nation on December 8–9, 2025.
[ii] Malii v British Columbia, 2024 BCCA 406, leave to appeal to SCC granted, 41644 (24 April 2025) [Malii BCCA].
[iii] Nisga’a Nation v Malii, 2024 BCCA 313, leave to appeal to SCC granted, 41516 (24 April 2025).
[iv] Malii v British Columbia, 2024 BCSC 1432 [Malii BCSC]; Malii v British Columbia, 2024 BCSC 85.
[v] Malii BCCA, supra note ii.
[vi] Malii BCSC, supra note iv.
[vii] Malii BCCA, supra note ii.
[viii] The Supreme Court of Canada also permitted the cross-appeal of the Gitanyow Nation on the issue of the TSKLH Nation’s participation as a defendant.
[ix] Malii BCCA, supra note ii at para 93.
[x] Ibid at para 112.
[xi] Ibid at at para 93.
[xii] With the exception of Treaty 8 covering the Northeastern part of British Columbia that was concluded in 1899 between the Crown and various First Nations of the Lesser Slave Lake area, and the Douglas Treaties covering the Southern Tip of Vancouver Island that were concluded between 1850 and 1854, in which the Hudson’s Bay Company made 14 purchases of First Nations land (see Government of British Columbia, History of Treaties in BC (BC: last modified 20 September 2024), online:<gov.bc.ca/gov/content/environment/natural-resource-stewardship/consulting-with-first-nations/first-nations-negotiations/about-first-nations-treaty-process/history-of-treaties-in-bc>). The modern treaties concluded in British Columbia being as follows: The Nisga’a Final Agreement, the Tsawwassen First Nation Final Agreement, the Maa-nulth First Nations Final Agreement, and the Tla’amin Final Agreement (see ibid).
[xiii] Malii BCCA, supra note ii at para 50.
[xiv] Ibid at para 51.
[xv] Ibid at para 93.
[xvi] Malii BCSC, supra note iv at para 77.
[xvii] Ibid.
[xviii] Malii BCCA, supra note ii at para 51.
[xix] See e.g. Delgamuukw v British Columbia, 1997 CanLII 302 (SCC) at para 158. See generally Kent McNeil, “Exclusive Occupation and Joint Aboriginal Title” (2015) 48:3 UBC L Rev 821.
[xx] Malii BCSC, supra note iv at paras 9, 20, 85–86.
[xxi] Malii BCCA, supra note ii at para 112.
[xxii] Ibid at para 95.
[xxiii] Ibid at para 112.