IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Reece v. Canada (Attorney General),  
2022 BCSC 865  
Date: 20220525  
Docket: S217708  
Registry: Vancouver  
Between:  
Garry Reece and Harold Leighton, on their own behalf and on behalf of the  
members of the Allied Tribes of Lax Kw’alaams and Metlakatla  
Plaintiffs  
And  
The Attorney General of Canada, Her Majesty the Queen in Right of the  
Province of British Columbia, and Nisga’a Nation as represented by Nisga’a  
Lisims Government  
Defendants  
Before: The Honourable Madam Justice W.A. Baker  
Reasons for Judgment  
Counsel for Plaintiffs:  
P. Seaman  
S.A. Smith  
B. Murphy  
Counsel for Defendant, The Attorney  
General of Canada:  
S. Miller  
P. Shyba, Articled Student  
Counsel for Defendants, Province of British  
Columbia:  
P. Foy, Q.C.  
C. Robb  
Counsel for Nisga’a Nation as represented  
by Nisga’s Lisims Government:  
M. Clark  
J. Aldridge, Q.C.  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
March 8, 9, 10, 2022  
Vancouver, B.C.  
May 25, 2022  
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Table of Contents  
I. INTRODUCTION AND BACKGROUND ............................................................ 3  
A. Overview ......................................................................................................... 3  
B. Consultation .................................................................................................... 5  
II. ISSUES............................................................................................................. 11  
A. Is an injunction available to the Allied Tribes prior to proof of aboriginal title?  
11  
B. Are the Allied Tribes entitled to an injunction? .............................................. 14  
1. Have the Allied Tribes raised a serious issue to be tried? ......................... 14  
a) Strength of Title Claim............................................................................ 14  
b) Assessment of the Evidence.................................................................. 17  
c) Res Judicata .......................................................................................... 25  
d) Laches and Acquiescence ..................................................................... 26  
e) Prematurity............................................................................................. 27  
2. Will the Allied Tribes suffer irreparable harm if the injunction is not granted?  
29  
a) Irreparable Harm.................................................................................... 29  
b) Non-Derogation Clauses........................................................................ 37  
3. Does the balance of convenience favour an injunction?............................ 39  
III.  
CONCLUSION.............................................................................................. 43  
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I.  
INTRODUCTION AND BACKGROUND  
A. Overview  
The plaintiffs are a collection of Tsimshian nations, who seek an injunction  
[1]  
preventing the Crown from transferring certain lands at the mouth of the Nass River  
in northwestern British Columbia to the Nisga’a Nation. The plaintiffs also seek an  
injunction preventing the addition of the lands to the Nisga’a Lands, as defined in the  
Nisga’a Final Agreement (the “Treaty”).  
[2]  
This action is brought on behalf of the members of both the Lax Kw’alaams  
and the Metlakatla nations. These modern nations comprise the following nine  
historic tribes: Giluts'aaw, Ginadoiks, Ginaxangiik, Gispaxlo'ots, Gitando, Gitlaan,  
Gits'iis, Gitwilgyoots, and Gitzaxłaał. The plaintiffs are defined in this action as the  
“Allied Tribes”, an aboriginal people within the meaning of s. 35 of the Constitution  
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Constitution  
Act, 1982]. In some of the underlying documents in evidence, the Allied Tribes are  
also referred to as the “Nine Tribes”.  
[3]  
The Allied Tribes assert that before and at contact, and at 1846, they were a  
distinct, organized, and self-governing people with distinctive features including a  
common culture, language, customs, practices, traditions, legal system, economy,  
and spiritual beliefs.  
[4]  
The defendant Her Majesty the Queen in Right of the Province of British  
Columbia (the “Province”) holds title to approximately 22,469 hectares of land at the  
mouth of the Nass River, which includes a peninsula known as the Mylor Peninsula  
(the “Nasoga Lands”). The Mylor Peninsula is shaped like a long oval attached to the  
mainland on the east side by a stretch of land, an isthmus, about one third the length  
of the entire peninsula. A small gulf to the south of the isthmus is named the Nasoga  
Gulf. The bay to the north of the isthmus is named Iceberg Bay. On the west side of  
the peninsula is an inlet named Portland Inlet. The body of water to the north of the  
peninsula is the Nass Bay, and the mouth of the Nass River is northwest of the  
Nasoga Lands. The Nasoga Lands, together with a proposed long term lease of  
   
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approximately 668 hectares of the foreshore on the Nasoga Gulf (the “Lease”), are  
the subject of this application.  
[5]  
The Allied Tribes claim that they exclusively used, occupied, owned and  
controlled before and at contact, and at 1846, the coastal region between Grenville  
Channel, the Skeena and Nass Rivers, and the lands and waters within Prince  
Rupert Harbour. The plaintiffs say that they are the modern descendants of the  
Allied Tribes, and are the present-day holders of Aboriginal title within and  
throughout this territory. Specifically, the Allied Tribes seek a declaration of  
aboriginal title over the Nasoga Lands.  
[6]  
The defendant Nisga’a Nation, as represented by Nisga’a Lisims Government  
(“Nisga’a”), is a nation which has claimed ownership, occupation, use and exercise  
of sovereignty over various lands and waters in the area of the Nass River valley. In  
1996, the Nisga’a entered into an agreement in principle with Canada and the  
Province with respect to various matters, including lands in the Nass valley. The  
agreement was formalized in 1998 as the Nisga’a Final Agreement (the Treaty),  
which was ratified by the Province in 1999 and Canada in 2000. The Treaty is a  
treaty and a land claims agreement within the meaning of ss. 25 and 35 of the  
Constitution Act, 1982.  
[7]  
The Nisga’a Treaty defines certain lands as “Nisga’a Lands”, which include  
“Nisga’a Public Lands”, “Nisga’a Private Lands”, and “Nisga’a Village Lands”. It also  
references certain lands defined as “Nisga’a Fee Simple Lands”, which are located  
outside the boundaries of the Nisga’a Lands. The Nasoga Lands do not fall within  
the boundaries of the Nisga’a Lands or the Nisga’a Fee Simple Lands. The Nasoga  
Lands fall within the Nass Wildlife Area (“NWA”), in which the Nisga’a have a non-  
exclusive right to pursue their aboriginal rights under the Treaty.  
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[8] Pursuant to the Treaty and, in particular, paragraphs 24 and 25, the Nisga’a’s  
aboriginal title lands continue as Nisga’a Lands and Nisga’a Fee Simple Lands, as  
defined in the Treaty:  
24.  
Notwithstanding the common law, as a result of this Agreement and  
the settlement legislation, the aboriginal rights, including the aboriginal  
title, of the Nisga’a Nation, as they existed anywhere in Canada  
before the effective date, including their attributes and geographic  
extent, are modified, and continue as modified, as set out in this  
Agreement.  
25.  
For greater certainty, the aboriginal title of the Nisga’a Nation  
anywhere that it existed in Canada before the effective date is  
modified and continues as the estates in fee simple to those areas  
identified in this Agreement as Nisga’a Lands or Nisga’a Fee Simple  
Lands.  
[9]  
The title to the Nasoga Lands is currently held by the Province. The Province  
and the Nisga’a are in the process of negotiating a fair market sale of the Nasoga  
Lands to the Nisga’a, and entering into the proposed Lease with the Nisga’a  
(collectively, the “Disposition”). If the Disposition completes as presently  
contemplated, the Nisga’a Nation will own the Nasoga Lands in fee simple.  
[10] The defendant Her Majesty the Queen in right of Canada (“Canada”) is a  
party to the Treaty. Pursuant to the Treaty, lands may be added to the Nisga’a  
Lands, with the consent of Canada and the Province. Canada, the Province, and the  
Nisga’a are in the process of negotiating the addition of the Nasoga Lands to the  
Nisga’a Lands under the Treaty (the “Consent”).  
[11] The Allied Tribes seek an injunction to prevent both the Disposition and the  
Consent.  
B.  
Consultation  
[12] This is an application for injunctive relief. It is not an application addressing  
the adequacy of consultation to date. Nevertheless, the consultation process  
undertaken to this point is relevant to the issues on this application.  
[13] In 2016, the Province approached Lax Kw’alaams and Metlakatla to begin  
consultation regarding the proposed Disposition and Consent.  
 
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[14] The same year, Canada also sent letters to Lax Kw’alaams and Metlakatla to  
begin consultations on the Consent decision, and to acknowledge that Canada was  
not involved in the Disposition decision.  
[15] On October 11, 2016, the Allied Tribes sent copies of reports prepared by  
Dr. Andrew Martindale, an archaeologist, addressing the ownership of the Nasoga  
Lands pursuant to Tsimshianic law. The Allied Tribes expressed their opposition to  
the Disposition.  
[16] In 2018, the Province advised the Allied Tribes that the Province viewed the  
Allied Tribes’s prima facie claim to aboriginal title to be weak at the Mylor Peninsula  
and Nasoga Gulf foreshore, and weak-moderate to moderate at the south end of the  
Mylor Peninsula in proximity to a pictograph.  
[17] Through 2018 and 2019, the Province and the Allied Tribes corresponded  
regarding the Disposition and Consent, with the Allied Tribes continually expressing  
their opposition and asking for a meeting with the Province to discuss their position  
before any further steps were taken to move ahead with the Disposition and  
Consent.  
[18] In 2019, once the process regarding the Disposition had significantly  
advanced, Canada sent letters to Lax Kw’alaams and Metlakatla to re-engage in  
consultations regarding the Consent.  
[19] On April 24, 2019, the Allied Tribes wrote to the Province, enclosing a further  
report from Dr. Martindale and two traditional land use studies, and made  
submissions on the evidence supporting the Allied Tribes’s claim to aboriginal title in  
the Nasoga Lands. The Allied Tribes also notified the Province that if it proceeded  
with the Disposition without properly addressing their concerns, the Allied Tribes  
would be forced to seek interim relief. In other correspondence, the Allied Tribes  
continued to request a meeting with the Province to discuss their concerns.  
[20] In May 2019, the Allied Tribes sent copies of the Martindale materials to  
Canada, and advised Canada that they opposed the Disposition and Consent.  
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[21] On May 30, 2019, counsel for the Allied Tribes met with the Deputy Attorney  
General for the Province to discuss issues relating the Nasoga Lands and the  
Disposition and Consent.  
[22] In June 2019, the Allied Tribes sought a meeting with Canada to discuss the  
Disposition and Consent.  
[23] On June 25, 2019, the Allied Tribes provided the Province with an addendum  
to the Martindale report.  
[24] On July 31, 2019, a meeting took place between Dr. Martindale and  
Mr. Cope, a researcher with the Ministry of the Attorney General who had reviewed  
Dr. Martindale’s report, along with various other staff from the Province, and counsel  
for the Allied Tribes.  
[25] Correspondence between the Allied Tribes and the Province continued  
through 2019 and into 2020, primarily focussed on addressing the Province’s  
assessment of the Allied Tribes’s strength of claim to the Nasoga Lands.  
[26] On June 2, 2020, the Allied Tribes sent volume 2 of Dr. Martindale’s opinion  
to the Province.  
[27] On July 9, 2020, the Province wrote to the Allied Tribes to provide additional  
information and an updated strength of claim analysis. The Province advised that an  
area described as a beach camp site, where an Allied Tribes chief, Chief Ligeex,  
held a feast and revealed a large pictograph of himself, and the site of the  
pictograph itself, were areas the Province assessed the Allied Tribes as having  
moderate strength of claim. However, with respect to the remaining Nasoga Lands,  
the Province assessed the Allied Tribes’s proof of claim as weak to moderate. The  
Province acknowledged that, following the Disposition and Consent, the Nasoga  
Lands may be subject to development, and asserted that the Disposition and  
Consent themselves did not cause any impacts.  
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[28] The Province assessed minor to moderate impacts on the Allied Tribes’s  
claim to aboriginal title arising from the Disposition and Consent.  
[29] On September 30, 2020, counsel for the Allied Tribes sent a detailed  
response to the Province’s new strength of claim assessment. In this letter, the  
Allied Tribes again argued that their claim to ownership of the Nasoga Lands is  
particularly strong, and the Province has an obligation to take appropriate care to  
preserve their aboriginal interest pending final resolution of their claim.  
[30] In December 2020, Canada wrote to the Allied Tribes to inform them of  
Canada’s proof of claim assessment, which was essentially the same as the  
Province’s. Canada asked the Allied Tribes to confirm whether a meeting with  
Canada was requested. In his affidavit sworn February 15, 2022, Mr. Paulo Eusebio,  
a senior treaty implementation advisor with Canada, stated that Canada had not  
received a response from the Allied Tribes regarding Canada’s offer to meet.  
Mr. Eusebio stated that Canada was still reviewing the material from Dr. Martindale  
and assessing the impacts of a decision to approve the Consent. Mr. Eusebio stated  
Canada had not determined whether any accommodations would be appropriate.  
[31] In February 2021, the Province responded to the Allied Tribes, and asked the  
Allied Tribes to confirm whether a meeting was requested to discuss the Province’s  
letter. The Province also provided a report prepared by Mr. Cope, responding to the  
Martindale reports.  
[32] Counsel for the Allied Tribes responded on March 5, 2021, providing detailed  
submissions disputing the Province’s assessment, and challenging the conclusions  
reached by Mr. Cope. Counsel for the Allied Tribes included material obtained from  
the Nisga’a Nation’s official website, which indicated an intention to build an LNG  
facility on the Nasoga Lands. The Allied Tribes expressed deep concern on the  
impact such construction would have on their rights and title. Counsel concluded  
with the following statement:  
In closing, and to be clear, the Province must first take steps to address the  
Nine Tribes’ concerns about the Province’s constitutionally infirm approach to  
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its strength of claim analysis in the manner set out above. It is only following  
this that the Province and the Nine Tribes may engage in meaningful, good  
faith dialogue about what accommodation measures can or would need to be  
put in place before the Province can lawfully continue contemplating a  
disposition of the subject lands to the Nisga’a Nation.  
Likewise, despite four years of “consultation”, the Province has not attempted  
to discuss how the Nine Tribes' Aboriginal title and rights to and throughout  
the subject lands could be preserved. At the appropriate time, a detailed  
discussion would have to occur between the Province and the Nine Tribes on  
this topic to address the issue of avoiding irreparable harm and minimizing  
the effects of infringement caused by the proposed disposition, before the  
Province would be able to continue [to] contemplate proceeding with that  
course of action.  
[33] The Province responded to the Allied Tribes by letter dated April 23, 2021. In  
this letter, the Province stated its position on its strength of claim assessment and  
the disputed conclusions reached by Mr. Cope and Dr. Martindale, as well as the  
Province’s position on accommodation and the non-derogation clauses in the Treaty.  
The Province also advised that if the Nisga’a developed an LNG plant, it would  
continue to be subject to federal and provincial environmental assessments and  
associated Crown consultation obligations.  
[34] On July 30, 2021, the Province wrote to the Allied Tribes advising it would be  
proceeding with its decision on the Disposition of the Nasoga Lands to the Nisga’a in  
the early fall of 2021, notwithstanding the ongoing dispute regarding the Allied  
Tribes’s claim to aboriginal title to the lands. The Province acknowledged that the  
Allied Tribes wished to meet with provincial Deputy Ministers and Assistant Deputy  
Ministers so Dr. Martindale could present his findings on the Allied Tribes’s claims to  
the Nasoga Lands and the Province’s approach to its strength of claim analysis. The  
Province declined such a meeting, indicating that a similar meeting was held two  
years earlier, and the areas of disagreement were well-known.  
[35] Following the July 30, 2021 letter from the Province, the Allied Tribes filed the  
present action seeking injunctive relief.  
[36] In the fall of 2021, the Allied Tribes attempted to set up a dispute resolution  
process with the Province to address their concerns, and to forestall the need to  
bring this injunction application. The Province agreed to a meeting where the parties  
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could identify the issues between them and ways to resolve those issues. The  
Province also stated the Nisga’a should be included in the meeting.  
[37] The Allied Tribes sought the Province’s agreement to not proceed with the  
Disposition and Consent during the dispute resolution process. The Province did not  
commit to refrain from making a decision on the Disposition and Consent during the  
dispute resolution process, but did agree it would give the Allied Tribes 14 days  
notice before signing an agreement with the Nisga’a.  
[38] Counsel for the Allied Tribes responded to the Province on November 17,  
2021 as follows:  
Given that the Province’s position on this matter does not provide our clients  
with any assurances relating to the Province refraining from advancing the  
sale and transfer of the Nasoga Lands such that our clients will be afforded  
their day in court if the proposed one-day, facilitated meeting is unsuccessful,  
we will be filing their application for injunction and setting it down for hearing  
at BC Supreme Court as soon as possible. I expect this date may be as soon  
as December or early January.  
I will conclude by adding that we do not view this pathway as creating the  
best possible set of circumstances for our respective clients to attempt to  
settle this matter through the proposed facilitated meeting, but the Province’s  
position in respect of the above has left our clients without any other realistic  
option. In that regard, please advise us as soon as possible if the Province is  
willing to reconsider its position on this matter.  
[39] On December 6, 2021, the Province agreed that it would not enter into a  
binding agreement with the Nisga’a on the Disposition until this injunction application  
was finally decided.  
[40] On January 10, 2022, the Allied Tribes wrote to the provincial Minister of  
Indigenous Relations and Reconciliation. The Allied Tribes indicated that despite the  
pending injunction application, the Allied Tribes were of the view that the issues  
between the parties ought to be resolved through a dispute resolution process, and  
had offered to enter in such a process since August 2021. The Allied Tribes asked  
the Minister to respond with dates when the Province and the Nisga’a could meet  
with the Allied Tribes to attempt to settle the matter. The Allied Tribes had engaged  
the Honourable Murray Sinclair to mediate the dispute.  
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[41] The Province responded to the Allied Tribes by letter dated January 14, 2022,  
indicating that it would be agreeable to attending a one day meeting facilitated by  
Mr. Sinclair. The Province asked the Nisga’a to respond as to their willingness to  
attend.  
[42] A meeting facilitated by Mr. Sinclair was held on February 9, 2022, with  
representatives of the Allied Tribes and the Province. Representatives of the Nisga’a  
declined to attend.  
[43] Between February 17-19, 2022, the parties, including the Nisga’a, discussed  
the possibility of a further meeting to begin an alternative dispute resolution process.  
As of the date of the hearing of this application, such a meeting had not happened.  
II.  
ISSUES  
[44] The issues raised on this application are the following:  
a) Are the plaintiffs precluded from bringing an application for an injunction in  
a case where aboriginal title is claimed, but not yet proven?  
b) If the plaintiffs are not precluded from bringing an application for an  
injunction, should an injunction be granted?  
A.  
Is an injunction available to the Allied Tribes prior to proof of  
aboriginal title?  
[45] The Province argued that prior to proof of title, the consent of the Allied Tribes  
is not required for it to agree to the Disposition, and the Allied Tribes are only entitled  
to consultation and, in appropriate circumstances, possibly a form of  
accommodation. The Nisga’a also argued that the Allied Tribes are entitled to  
consultation and nothing more, prior to proof of aboriginal rights and title.  
[46] The Province argues that since 2016, the Allied Tribes have consistently  
taken the position that their consent is required before the Crown may agree to the  
Disposition and Consent. My review of the consultation record before me on this  
application does not support the argument advanced by the Province. To the  
   
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contrary, my review of the consultation record reveals that while the initial  
correspondence from the Allied Tribes indicated they did not consent to the  
Disposition and Consent, the consistent position of the Allied Tribes throughout the  
four years of consultation has been that the parties must meet to resolve the issues  
between them prior to the decision on the Disposition and Consent being finalized.  
The overriding position of the Allied Tribes articulated in the record is that the  
Province has minimized the interests of the Allied Tribes, and has not been willing to  
work with the Allied Tribes to protect their interests in the event a decision is made to  
proceed with the Disposition and Consent.  
[47] In response to the defendants’ arguments, the Allied Tribes take the position  
that the Crown has not adequately consulted in relation to the Disposition and  
Consent. However, they maintain that this application is not advanced as a  
challenge to a decision following inadequate or failed consultation. This is an  
application for an injunction to prevent a decision on the Disposition and Consent.  
[48] At the time MacMillan Bloedel v. Mullin (1985), 61 B.C.L.R. 145 (C.A.), was  
decided, the primary relief available to Indigenous nations was an injunction if the  
exercise of their aboriginal rights was in jeopardy before their rights could be  
determined. In 2004, the Supreme Court of Canada in Haida Nation v. British  
Columbia (Minister of Forests), 2004 SCC 73, confirmed the duty of the Crown to  
consult with and, in certain circumstances, accommodate aboriginal interests prior to  
aboriginal rights being proven.  
[49] However, Haida Nation did not extinguish the availability of injunctive relief.  
Rather, the Court expressly maintained the availability of injunctive relief, and went  
on to discuss and develop what has now become the dominant form of relief—  
consultation and accommodation:  
[13]  
It is open to plaintiffs like the Haida to seek an interlocutory injunction.  
However, it does not follow that they are confined to that remedy. If plaintiffs  
can prove a special obligation giving rise to a duty to consult or  
accommodate, they are free to pursue these remedies. Here the Haida rely  
on the obligation flowing from the honour of the Crown toward Aboriginal  
peoples.  
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[14]  
Interlocutory injunctions may offer only partial imperfect relief. First, as  
mentioned, they may not capture the full obligation on the government  
alleged by the Haida. Second, they typically represent an all-or-nothing  
solution. Either the project goes ahead or it halts. By contrast, the alleged  
duty to consult and accommodate by its very nature entails balancing of  
Aboriginal and other interests and thus lies closer to the aim of reconciliation  
at the heart of Crown-Aboriginal relations, as set out in R. v. Van der Peet,  
[1996] 2 S.C.R. 507, at para. 31, and Delgamuukw v. British Columbia, [1997]  
3 S.C.R. 1010, at para. 186. Third, the balance of convenience test tips the  
scales in favour of protecting jobs and government revenues, with the result  
that Aboriginal interests tend to “lose” outright pending a final determination  
of the issue, instead of being balanced appropriately against conflicting  
concerns: J. J. L. Hunter, “Advancing Aboriginal Title Claims after  
Delgamuukw: The Role of the Injunction” (June 2000). Fourth, interlocutory  
injunctions are designed as a stop-gap remedy pending litigation of the  
underlying issue. Aboriginal claims litigation can be very complex and require  
years and even decades to resolve in the courts. An interlocutory injunction  
over such a long period of time might work unnecessary prejudice and may  
diminish incentives on the part of the successful party to compromise. While  
Aboriginal claims can be and are pursued through litigation, negotiation is a  
preferable way of reconciling state and Aboriginal interests. For all these  
reasons, interlocutory injunctions may fail to adequately take account of  
Aboriginal interests prior to their final determination.  
[50] The availability of injunctive relief is also not diminished by the Supreme  
Court’s decision in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. In addition  
to significant holdings in relation to aboriginal title, the Court in Tsilhqot’in Nation  
addressed the Crown’s obligations to the Tsilhqot’in prior to proof of title, and  
whether the Crown breached its obligations.  
[51] In Tsilhqot’in Nation, the Court referred to an injunction as a remedy available  
to an aboriginal group where the Crown failed to discharge its duty to consult:  
para. 89, citing Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at  
para 37 [Rio Tinto]. In Rio Tinto, the Court was also considering remedies available  
to an aboriginal group where the Crown failed to consult, referring back again to the  
same passages in Haida Nation which I have cited above:  
[37]  
The remedy for a breach of the duty to consult also varies with the  
situation. The Crown’s failure to consult can lead to a number of remedies  
ranging from injunctive relief against the threatening activity altogether, to  
damages, to an order to carry out the consultation prior to proceeding further  
with the proposed government conduct: Haida Nation, at paras. 13-14.  
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[52] In neither Tsilhqot’in Nation nor Rio Tinto did the Court hold that injunctions  
were no available generally, as set out in para. 13 of Haida Nation.  
[53] In the case before me, the Allied Tribes have chosen to seek interlocutory  
injunctive relief, an option open to them pursuant to Haida Nation, as confirmed in  
Rio Tinto and Tsilhqot’in Nation. I find that the Allied Tribes are not precluded from  
advancing their application for an injunction prior to establishing proof of aboriginal  
title.  
B.  
Are the Allied Tribes entitled to an injunction?  
[54] There is no dispute between the parties on the test to be met on this  
interlocutory injunction. The test for an interlocutory injunction is well-established  
and involves consideration of whether:  
a) there is a fair question or serious issue to be tried;  
b) the applicant has demonstrated that it will suffer irreparable harm if the  
injunction is not granted; and  
c) the balance of convenience favours the grant of an injunction.  
See: RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 332-  
333.  
1.  
Have the Allied Tribes raised a serious issue to be tried?  
a) Strength of Title Claim  
[55] The Province argues that the Allied Tribes’s title claim must fail because, in  
Canadian law, proof of aboriginal title depends on proof of use and occupation:  
Tsilhqot’in Nation at para. 12. On this basis, the Province submits the Allied Tribes’s  
claim does not raise a serious issue to be tried.  
[56] The Province argues that because other nations, including the Tlingit and the  
Haida, travelled to the Nass fishing areas across the Nasoga Lands, the Allied  
Tribes cannot support a claim of aboriginal title, as their use was not exclusive. The  
     
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Province also takes issue with Dr. Martindale’s opinion, because he is not a scholar  
of Canadian law. Rather, his expertise is in the area of Tsimshianic law only.  
[57] At the outset, I will address the probative value of Dr. Martindale’s reports.  
The Allied Tribes rely upon their traditional Tsimshianic law to establish their claim to  
the Nasoga Lands in opposition to any claims asserted by the Nisga’a. The Court  
does need an expert in Canadian law to help it understand Canadian legal concepts.  
However, the Court does need an expert in Tsimshianic law to understand the  
ancestral practices and laws of the Tsimshianic people who lived in the areas  
claimed by the Allied Tribes and the Nisga’a. In this respect, Dr. Martindale’s  
expertise is valuable and he is not required to be an expert in the Canadian legal  
tradition.  
[58] With respect to whether the Allied Tribes’s claim raises a serious issue to be  
tried, I am satisfied it does. In my view, possible evidence of the presence of other  
nations on the Nasoga Lands is not necessarily fatal to the Allied Tribes’s claim of  
Aboriginal title. In Tsilhqot’in Nation, the Court expressly warned against restricting  
the understanding of aboriginal title to concepts found in the Western common law  
tradition. In discussing the useful concepts of sufficiency, continuity and exclusivity in  
establishing title, the Court held:  
[32]  
In my view, the concepts of sufficiency, continuity and exclusivity  
provide useful lenses through which to view the question of Aboriginal title.  
This said, the court must be careful not to lose or distort the Aboriginal  
perspective by forcing ancestral practices into the square boxes of common  
law concepts, thus frustrating the goal of faithfully translating pre-sovereignty  
Aboriginal interests into equivalent modern legal rights. Sufficiency, continuity  
and exclusivity are not ends in themselves, but inquiries that shed light on  
whether Aboriginal title is established.  
[]  
[34]  
The question of sufficient occupation must be approached from both  
the common law perspective and the Aboriginal perspective (Delgamuukw, at  
para. 147); see also R. v. Van der Peet, [1996] 2 S.C.R. 507.  
[35]  
The Aboriginal perspective focuses on laws, practices, customs and  
traditions of the group (Delgamuukw, at para. 148). In considering this  
perspective for the purpose of Aboriginal title, “one must take into account the  
group’s size, manner of life, material resources, and technological abilities,  
and the character of the lands claimed”: B. Slattery, “Understanding  
Reece v. Canada (Attorney General)  
Page 16  
Aboriginal Rights” (1987), 66 Can. Bar Rev. 727, at p. 758, quoted with  
approval in Delgamuukw, at para. 149.  
[]  
[38]  
To sufficiently occupy the land for purposes of title, the Aboriginal  
group in question must show that it has historically acted in a way that would  
communicate to third parties that it held the land for its own purposes. This  
standard does not demand notorious or visible use akin to proving a claim for  
adverse possession, but neither can the occupation be purely subjective or  
internal. There must be evidence of a strong presence on or over the land  
claimed, manifesting itself in acts of occupation that could reasonably be  
interpreted as demonstrating that the land in question belonged to, was  
controlled by, or was under the exclusive stewardship of the claimant group.  
[]  
[48]  
Exclusivity should be understood in the sense of intention and  
capacity to control the land. The fact that other groups or individuals were on  
the land does not necessarily negate exclusivity of occupation. Whether a  
claimant group had the intention and capacity to control the land at the time  
of sovereignty is a question of fact for the trial judge and depends on various  
factors such as the characteristics of the claimant group, the nature of other  
groups in the area, and the characteristics of the land in question. Exclusivity  
can be established by proof that others were excluded from the land, or by  
proof that others were only allowed access to the land with the permission of  
the claimant group. The fact that permission was requested and granted or  
refused, or that treaties were made with other groups, may show intention  
and capacity to control the land. Even the lack of challenges to occupancy  
may support an inference of an established group’s intention and capacity to  
control.  
[49]  
As with sufficiency of occupation, the exclusivity requirement must be  
approached from both the common law and Aboriginal perspectives, and  
must take into account the context and characteristics of the Aboriginal  
society. The Court in Delgamuukw explained as follows, at para. 157:  
A consideration of the [A]boriginal perspective may also lead to the  
conclusion that trespass by other [A]boriginal groups does not  
undermine, and that presence of those groups by permission may  
reinforce, the exclusive occupation of the [A]boriginal group asserting  
title. For example, the [A]boriginal group asserting the claim to  
[A]boriginal title may have trespass laws which are proof of exclusive  
occupation, such that the presence of trespassers does not count as  
evidence against exclusivity. As well, [A]boriginal laws under which  
permission may be granted to other [A]boriginal groups to use or  
reside even temporarily on land would reinforce the finding of  
exclusive occupation. Indeed, if that permission were the subject of  
treaties between the [A]boriginal nations in question, those treaties  
would also form part of the [A]boriginal perspective.  
[Emphasis added.]  
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Page 17  
[59] I am not prepared on this interlocutory application to rule out the possibility  
that a trial judge may, in fact, apply Tsimshianic law to resolve border disputes  
between these nations which have lived in the same region for thousands of years.  
In that analysis, the court may very well apply Tsimshianic law to establish whether  
either nation has proven that, prior to the arrival of Europeans, they held control over  
the Nasoga Lands sufficient to prove aboriginal title, as articulated in Tsilhqot’in  
Nation.  
[60] In my view, the court on an interlocutory application must be cautious not to  
foreclose the development of the law in this area. Accordingly, I cannot accede to  
the Province’s argument that the Allied Tribes’s claim does not raise a serious issue  
to be tried on these grounds.  
b)  
Assessment of the Evidence  
[61] In the underlying claim, the Allied Tribes seek declarations that they hold  
Aboriginal title to, and are entitled to possess, the Nasoga Lands. The Allied Tribes  
support their application with the evidence of Garry Reece, Harold Leighton, and  
Dr. Martindale.  
[62] Mr. Reece is a hereditary chief of the Ginaxangiik Tribe, one of the Allied  
Tribes. Mr. Reece is also the mayor of Lax Kw’alaams, a position formerly known as  
chief councillor, and one which he has held from 1997 to the present with only two  
breaks totalling six years.  
[63] Mr. Reece described the relationship of the Allied Tribes, and the Lax  
Kw’alaams in particular, to the Nasoga Lands as follows:  
The Subject Lands are located at the entrance to Fishery Bay at the mouth of  
the Nass River. This area has been economically and politically important to  
the Allied Tribes for thousands of years, including because of the rich  
eulachon fishery available there. The Subject Lands are a geographic  
gateway for the Allied Tribes to access those eulachon fishing grounds, and,  
as a result, they have been (and continue to be) of great strategic, economic,  
and cultural importance to us, both historically and in modern times.  
The history of the Subject Lands is unique. It is well-known that Allied Tribes  
Chief Ligeex, of the Gispaxlo'ots Tribe, arranged to have a pictograph of  
himself and of several copper shields painted on the Subject Lands near a  
 
Reece v. Canada (Attorney General)  
Page 18  
place known as Ten Mile Point, to demonstrate Allied Tribes' ownership and  
control over the Territory.  
Our Allied Tribes ancestors would travel across the neck of the Subject  
Lands, particularly when a strong north wind was blowing. Safe passage to  
reach our eulachon fishing grounds in Fishery Bay would be much more  
difficult without this route.  
Today, as in the past, Lax Kw'alaams members continue to use the Subject  
Lands and surrounding waters for various purposes, including hunting,  
fishing, travel, and camping. Our members also continue to harvest various  
natural resources in the area. The area is also important to us spiritually.  
[64] Mr. Leighton is the chief councillor of the Metlakatla nation, holding that  
position for over 30 years. He is a spokesperson for Nestoix, a chief of the  
Gitwilgyoots tribe, one of the Allied Tribes.  
[65] Mr. Leighton echoes the evidence of Mr. Reece. He described the  
relationship of the Allied Tribes, and the Metlakatla in particular, to the Nasoga  
Lands as follows:  
The Subject Lands have a very special and significant political, economic,  
cultural, and spiritual significance to us. These lands are at the entrance to  
Fishery Bay at the mouth of the Nass River, where Metlakatla ancestors have  
traveled, fished, and lived for thousands of years. Our ancestors camped on,  
and traveled across, the neck of the Subject Lands when there was a strong  
north wind and dangerous weather at sea.  
It is also well-known to Metlakatla members that Chief Ligeex of the  
Gispaxlo'ots Tribe had a pictograph of himself painted on the Subject Lands,  
at a place known as Ten Mile Point, and elsewhere in the Territory (at the  
mouth of the Skeena River), to demonstrate the Allied Tribes' ownership and  
control over these areas. There are spanaxnox (supernatural) sites known to  
be at the Subject Lands, at Ten Mile Point (Wil'nlabalga S'hoks) and Nasoga  
Gulf (Tsemsqaéo). The Subject Lands, and our ability to access them for a  
variety of purposes as our ancestors did, are important and irreplaceable to  
us.  
[66] Mr. Leighton also attached to his affidavit two traditional land use studies  
prepared in connection with two natural gas pipeline projects that were proposed to  
pass over, or near to, the Nasoga Lands. These studies were prepared in 2014,  
before any notice to Allied Tribes was provided of a proposed transfer of the Nasoga  
Lands to the Nisga’a. These studies concluded that “[Metlakatla] people have  
actively used their territory for millennia, and they continue to do so in the present,  
as evidenced by the many TLU [Traditional Land Use] sites recorded within the  
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Page 19  
proposed Project footprint.The studies show traditional uses and archeological  
sites across the significant portions of the Nasoga Lands, including the whole of the  
Mylor Peninsula. The studies also confirmed the continuing activities of Metlakatla  
members in the area, including fishing, marine resource harvesting, hunting,  
trapping, materials collecting, berry picking, and food and medicinal plant gathering.  
[67] Dr. Martindale is an anthropological archaeologist and professor in the  
department of anthropology at the University of British Columbia (“UBC”).  
[68] Dr. Martindale describes his specialty as follows:  
My research and expertise is focused on the Pacific Northwest Coast,  
specifically the history and archaeology of Indigenous peoples and the use of  
Indigenous oral records in archaeology. This includes examining, interpreting,  
and correlating physical use and occupation with claims of ownership in the  
context of oral records and other narratives, specifically examining territorial  
claims within the framework and principles of the Tsimshian legal system  
(adawx).  
[69] Dr. Martindale was asked to provide his opinion on whether the Allied Tribes  
used, occupied, controlled or owned the Nasoga Lands at three different dates: the  
date of first contact (approximately 1793); the date of the assertion of Crown  
sovereignty (approximately 1846); and today.  
[70] He was asked to provide his opinion on the nature of the Allied Tribes’  
connection to the Nasoga Lands (including any legal, social, cultural, spiritual,  
geopolitical, and economic elements of such connection) and the effect of any  
transfer of Crown fee simple title to the Nisga’a.  
[71] Dr. Martindale provided an affidavit in compliance with the Supreme Court  
Civil Rules, B.C. Reg. 168/2009, regarding the receipt of expert evidence by the  
court, which attached a preliminary report dated October 10, 2016, and an extensive  
expert report and addenda dated April 18, 2019, June 4, 2019, and June 1, 2020.  
Dr. Martindale also states that the research he has conductedand which is the  
basis of his opinionis work which he conducted in his role as an academic at UBC,  
and he has received no compensation for his work. He states that his report  
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Page 20  
“subscribes to academic standards of representation of data, evaluation of sources,  
and it builds out of a long sequence of peer-reviewed publications.  
[72] Dr. Martindale opined that to understand the ownership of lands prior to 1793  
or 1846, it is important to understand the legal system in place at that time. In other  
words, prior to the assertion of Crown sovereignty or the arrival of European persons  
in the Pacific Northwest, the laws which governed use, ownership, and control were  
the Tsimshianic laws practiced by the Indigenous nations. Dr. Martindale opined that  
the Tsimshianic legal system governed the Allied Tribes and the Nisga’a.  
[73] Dr. Martindale opined that the Tsimshianic peoples shared a common  
language family, social, economic, and political networks, and participated in a  
common legal system which defined usage and ownership rights to lands and  
waters in their territories.  
[74] Dr. Martindale described the evidence supporting the Allied Tribes’s claims of  
ownership of the Nasoga Lands, including:  
a) a “foundational double feast (human and spiritual beings)” that claims the  
Nasoga Lands for the house groups that make up the Allied Tribes, more  
than 3,000 years ago;  
b) the slaughter of Allied Tribes chiefs by the Chief Haimas at Kincolith,  
which gives the location its name, “place of scalps”, an adawx (oral  
history) which presents ownership of the Nasoga Lands by the Allied  
Tribes in a legal context;  
c) the consolidation of the Nasoga Lands under Chief Ligeex (an Allied  
Tribes chief), likely in the early 19th century, which resulted in the  
pictograph at Ten Mile Point, which is a claim to legal ownership by the  
Allied Tribes;  
d) the first permanent establishment of a Nisga’a settlement in the area being  
the establishment of the Kincolith Mission in 1867;  
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Page 21  
e) the creation of Indian reserve lands in 1881; and  
f) a key meeting between the Nisga’a and the Allied Tribes chiefs in 1916,  
which was reported on at the time, and had legal implications in  
Tsimshianic law. At this meeting, the Allied Tribes presented their oral  
tradition (adawx) detailing their ownership of the Nasoga Lands, but the  
Nisga’a—while presentprovided no corresponding adawx to detail  
Nisga’a claims to the Nasoga Lands.  
[75] Dr. Martindale opined that under Tsimshianic law, the adawx can be used to  
determine ownership of lands because ownership or rights and titles are continually  
restated in ceremony (aka potlatches or feasts) in which the histories of the house  
group (adawx) are retold to an appropriate audience of witnesses.”  
[76] Dr. Martindale’s conclusions are based on evidence which includes the  
meaning and intention of the Chief Ligeex pictograph, and the “double feast” of  
spanaxnox (supernatural beings) and humans which had a nexus with the Nasoga  
Lands. The spanaxnox referred to in the double feast are described as spirit beings  
whose involvement in human affairs are central to the Allied Tribes’s connection to  
their territory and spirituality. Two of these spanoxnox are located on the Nasoga  
Lands.  
[77] Dr. Martindale described the significance of the Chief Ligeex pictograph in his  
report. Chief Ligeex was a chief of the Gispaxlo’ots tribe, one of the Allied Tribes. He  
held an elaborate feast, which Dr. Martindale described as a form of legal  
proceeding used by Tsimshianic people, including the Allied Tribes and the Nisga’a,  
at a place on the Nasoga Lands described as Ten Mile Point. At that feast, Chief  
Ligeex commissioned and unveiled a pictograph on the cliff facing the water,  
conspicuous to all marine travellers. Dr. Martindale opines that this pictograph was  
intended to communicate the Allied Tribes’s ownership and control of the Nasoga  
Lands.  
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[78] In 2019, Lax Kw’alaams field workers found the pictographs at Ten Mile Point,  
photographs of which were produced in evidence on this application.  
[79] At the feast when the pictographs were unveiled, leaders from each of the  
Allied Tribes were present, as were leaders from other nations in the region,  
including the Nisga’a. Dr. Martindale opines that if the Nisga’a had disputed Chief  
Ligeex’s claims, the Nisga’a would not have continued feasting with the Allied Tribes  
in future yearsas they in fact didand would likely have gone to war.  
[80] Dr. Martindale’s opinion is based on significant peer reviewed research. While  
I have set out some of the evidence discussed by Dr. Martindale (albeit,  
superficially), Dr. Martindale’s opinions comprise more than 500 pages of text and  
historical research, and include far more than the details I have set out above.  
[81] Dr. Martindale opines that:  
If a correct understanding of chronology in the adawx and of the operation of  
Tsimshianic law is employed then, in my professional opinion, the evidence  
aligns clearly: Tsimshianic law, of which both the Nisga’a and the Nine Tribes  
were participants, recognized that the Nine Tribes owned the Study Area [the  
Nasoga Lands] for thousands of years, a claim that went uncontested by the  
Nisga’a prior to contact, at 1793, and at 1846.  
[]  
I conclude that there must have been a boundary between the lands and  
waters of the house groups of the Nine Tribes and those of the Nisga’a. All  
the evidence points to this boundary being situated at the eastern end of  
Fishery Bay; lands and waters to the west belonged to the houses of the Nine  
Tribes exclusively.  
[82] Both Mr. Reece and Mr. Leighton confirm that Dr. Martindale’s conclusions  
are consistent with their understanding of the Tsimshian legal system and the  
relevant adawx, including that the Allied Tribes own the Nasoga Lands pursuant to  
the Tsimshian legal system.  
[83] The Province and the Nisga’a rely on a review of Dr. Martindale’s expert  
opinion by staff at the Ministry of Attorney General, Mr. Brad Cope. Mr. Cope’s  
qualifications were not made clear on the application. He was not tendered as an  
expert and, given the fact he is employed by one of the parties, it is not clear to me  
Reece v. Canada (Attorney General)  
Page 23  
that he has the requisite independence to be certified as an expert in this  
proceeding, even if his qualifications supported his expertise in this area (which is  
not known).  
[84] Mr. Cope does not agree with the Dr. Martindale’s conclusions. He takes  
issue with the weight and meaning Dr. Martindale attributed to certain evidence.  
With respect to the pictograph at Ten Mile Point, Mr. Cope suggests the claims  
asserted by Chief Ligeex had more to do with travel and trade routes than territory in  
land, citing authors who concluded that Chief Ligeex controlled access to the  
oolichan fishery. Mr. Cope says that control of a trade route is not the same as  
ownership of the adjacent land. Mr. Cope also points to evidence that Chief Ligeex  
was allied with certain Nisga’a in his trade ambitions, and suggests that such  
Nisga’a would not object to any assertion of control over trade routes asserted by  
Chief Ligeex. As such, he does not attribute the same significance to the fact that  
Nisga’a were present at the feast, and did not voice objections. Furthermore,  
Mr. Cope also questions whether any Nisga’a members were in fact present at the  
feast.  
[85] Mr. Cope refers to the establishment of a Nisga’a reserve at Kincolith, which  
appears to be inside the territory which Dr. Martindale opines was owned and  
controlled by the Allied Tribes. There is a dispute in the evidence as to when the  
Nisga’a began occupying the area at Kincolith. Dr. Martindale concluded that the  
Nisga’a were encouraged to settle there by the colonial authorities, and had no prior  
relationship to those lands. This conclusion is disputed by Mr. Cope and the Nisga’a.  
[86] Mr. Cope states that a more probable conclusion, based on the evidence, is  
that the “lands on Mylor Peninsula, Iceberg Bay, Nasoga Gulf, and the north side of  
Kwinamass [essentially, the Nasoga Lands] were used, occupied, owned, and in  
some instances defended by the Nisga’a from at least the early 19th century on.”  
[87] The Province argues that Allied Tribes have not disputed the alienation of  
other lands within their claimed territories, including to the Nisga’a. I take the thrust  
of this argument to be that Allied Tribes’s assertion of title is weakened, or not to be  
Reece v. Canada (Attorney General)  
Page 24  
acceded to, because they did not object to other takings in the past. I disagree. The  
fact that the Allied Tribes have accommodated other dispositions does not, in my  
view, weaken their claim to the Nasoga Lands. Every nation must make decisions  
about where to expend their energies in protecting their rights. The fact that the  
Allied Tribes are strongly protesting the disposition of the Nasoga Lands signals to  
me, in fact, that these lands are particularly significant to them.  
[88] The Nisga’a rely on the affidavit of Mr. Azak, a member of the Nisga’a Nation  
and the Chief Executive Officer of the Nisga’a Lisims Government. Mr. Azak states  
he is a hereditary chief with a cultural responsibility to be familiar with the Ayuuk (the  
Nisga’a traditional laws and practices).  
[89] Mr. Azak asserts, based on the Nisga’a Adaawak (oral histories), that the  
Nisga’a owned, occupied, used and exercised sovereignty over the Nasoga Lands  
since time immemorial. In support, he points to actions taken in response to various  
colonial and Canadian governments which are consistent with this position, including  
a petition to the British Privy Council in 1913, litigation commenced in 1967 (which  
resulted in the Supreme Court of Canada’s decision in Calder et al. v. Attorney-  
General of British Columbia, [1973] S.C.R. 313), the commencement of treaty  
negotiations in 1976, the agreement in principle with the federal and provincial  
Crowns in 1996, and the conclusion of Treaty negotiations in 1998. As the Allied  
Tribes rely on Tsimshianic law which predates the introduction of Western legal  
traditions and procedures, I do not find the positions taken by the Nisga’a to protect  
their asserted interests within the Western legal system to be determinative of  
aboriginal title in this case.  
[90] Mr. Azak disputes Dr. Martindale’s understanding of Tsimshianic law and its  
application to the Nisga’a. He states that Dr. Martindale’s understanding of  
Tsimshianic law includes aspects which do not form part of the Nisga’a Ayuuk. He  
states his understanding that Dr. Martindale did not interview any Nisga’a citizens in  
the preparation of his opinion. However, I am satisfied that Dr. Martindale’s research  
is comprehensive in his review of the historical record relating to the peoples living in  
Reece v. Canada (Attorney General)  
Page 25  
the region and Mr. Azak’s assertion is insufficient to overcome the historical record,  
as presented by Dr. Martindale on this application.  
[91] The Nisga’a argue that the Treaty does not operate to renounce or extinguish  
its claim of aboriginal title over the Nasoga Lands, and points to various provisions  
which set out the rights of the Nisga’a to pursue aboriginal rights within the Nass  
Area, which they say includes the Nasoga Lands. The Nisga’a also point to six  
hectares within the Nasoga Lands which the Nisga’a Nation owns in fee simple.  
[92] There is no dispute that the Nasoga Lands fall within the Nass Wildlife Area,  
and that pursuant to the Treaty the Nisga’a people are entitled to pursue certain  
aboriginal rights within the NWA. However, I find the argument that the Nisga’a  
maintain an aboriginal title claim over the Nasoga Lands is weak. The Treaty  
operates to resolve the Nisga’a claims of title and rights. With respect to the 6  
hectares owned in fee simple by the Nisga’a Nation, I note that the Allied Tribes  
have excluded this area from their claim.  
[93] I find the evidence of the Allied Tribes is compelling. Dr. Martindale has  
provided an expert opinion which strongly supports the claim of aboriginal title  
advanced by the Allied Tribes. His opinion is consistent with the compelling evidence  
of Mr. Reece and Mr. Leighton. The evidence advanced by the Province and the  
Nisga’a does not overcome the strength of the evidence advanced by the Allied  
Tribes. I find the Allied Tribes have established a strong arguable case that they hold  
aboriginal title to the Nasoga Lands.  
c)  
Res Judicata  
[94] The Nisga’a reviewed the case of Lax Kw’alaams Indian Band v. Canada  
(Attorney General), 2008 BCSC 447, aff’d 2009 BCCA 593, aff’d 2011 SCC 56,  
wherein the Court dismissed the Lax Kw’alaams’ claim to an aboriginal right to fish  
and sell fish in various areas, including the Nass River and Fishery Bay. The Court  
found that it was likely that the Coast Tsimshian fished in non-treaty areas of the  
Nass River, including Fishery Bay, with the permission of the Nisga’a. Although the  
 
Reece v. Canada (Attorney General)  
Page 26  
plaintiffs in that action originally asserted claims of aboriginal title in addition to their  
rights claims, the title claim was severed and has not yet been determined.  
[95] The Nisga’a argue that the parties in Lax Kw’alaams Indian Band were the  
same as in the case at bar, and the findings of the Court in that decision are binding  
upon them. They argue that the Allied Tribes are barred by res judicata from  
asserting any claims contrary to the findings of the Court in Lax Kw’alaams Indian  
Band. The Nisga’a further argue that it is an abuse of process to allow the current  
action to proceed and, without actually filing any application to this effect, argue that  
the proceedings should be struck.  
[96] This argument must fail for two reasons. First, the parties in the two actions  
are not identical. While the Allied Tribes include the Lax Kw’alaams, they also  
include the Metlakatla. No aboriginal rights of the Metlakatla were determined in Lax  
Kw’alaams Indian Band. In addition, Lax Kw’alaams Indian Band determined  
whether a commercial fishery had been established in the area known as Fishery  
Bay. Fishery Bay does not form part of the Nasoga Lands or the foreshore at issue  
in the within action. For these reasons, I find that the current action is not barred by  
operation of res judicata.  
d)  
Laches and Acquiescence  
[97] The Nisga’a argue that the relief sought by the Allied Tribes is barred by the  
doctrines of laches and acquiescence, and that the Allied Tribes ought to have  
brought this claim 21 years ago when the Treaty was first brought into force.  
[98] Similarly, the Province argues that the Allied Tribes have delayed bringing  
this application and should have brought it in 2016. Somewhat confusingly, the  
Province also argues that the Allied Tribes are seeking to bypass the consultation  
process which has been ongoing since 2016.  
[99] These arguments must fail. Twenty-one years ago when the Treaty was  
brought into force, the Nasoga Lands did not form part of the Nisga’a Lands. While  
the Nasoga Lands are found within the NWA, there was no intention at that time to  
 
Reece v. Canada (Attorney General)  
Page 27  
change the character of the Nasoga Lands from Provincial Crown lands to fee  
simple lands held by the Nisga’a, with the ultimate purpose of incorporating the  
lands into the Nisga’a Lands, as defined by the Treaty. Therefore, there was no  
imminent risk of harm 21 years ago. In 2016, the parties began discussions  
regarding the Disposition and Consent. The Allied Tribes could reasonably assume  
that the Crown would take their concerns into account in the consultation process.  
Again, there was no reason to bring an application for injunctive relief in 2016, and  
the parties began a consultation process which has continued up to the present.  
[100] It is only when the transfer of the Nasoga Lands to the Nisga’a became  
imminent that this action was properly brought. The Allied Tribes argue that in its  
July 30, 2021 letter, the Province made clear its intention to complete the Disposition  
and Consent, even though no resolution had been reached with the Allied Tribes. At  
that point, the Allied Tribes argue, the need to seek an injunction became apparent.  
[101] I accept the Allied Tribes’s argument. While the Province did not state it had  
made its decision at that time, it did state that it would make the decision in the fall.  
Given the position taken by the Province over the previous four yearswhich was to  
minimize the Allied Tribes’s claim to aboriginal title and any impacts flowing from the  
Disposition and ConsentI find the Allied Tribes could reasonably conclude that the  
likelihood of the Province deciding in favour of the Disposition and Consent by the  
fall of 2021, without resolving the interests of the Allied Tribes, was very high. I am  
not prepared to find that the within application is barred by the doctrines of laches or  
acquiescence.  
e)  
Prematurity  
[102] Canada argues that this application is premature as it relates to the Consent.  
Canada is not involved in the Disposition decision and, if the decision is negative,  
there is no need to proceed with the Consent decision. Canada says that it has  
offered to meet with the Allied Tribes a number of times, but the Allied Tribes have  
not responded. The Allied Tribes wrote to Canada in 2019 seeking a meeting, and  
 
Reece v. Canada (Attorney General)  
Page 28  
Canada wrote to the Allied Tribes in 2020 asking whether a meeting was requested.  
It was not explained in evidence why Canada and the Allied Tribes have not yet met.  
[103] However, a review of the evidence suggests that the primary focus of the  
Allied Tribes since 2020 has been to seek an agreement with the Province and the  
Nisga’a. This makes sense, as if the Allied Tribes can reach agreement with the  
Province and the Nisga’a, it is unlikely that the Allied Tribes would need to oppose  
the Consent. All discussions have been undertaken on the expectation that the  
Disposition and Consent will go hand in hand.  
[104] While Canada states that it has not yet reached a conclusion on the impacts  
of the Consent on the Allied Tribes’s asserted rights or any appropriate  
accommodation, the correspondence from Canada suggests that if the Disposition is  
completed, the Consent will follow immediately after:  
a) On March 18, 2016, the Nisga’a wrote to Canada indicating that the  
Nisga’a would shortly receive a fee simple interest in the Nasoga Lands,  
and the Nisga’a “wishes to add this land to Nisga’a Lands immediately  
upon the making of the grant”. The Nisga’a state it “is vital that the Nasoga  
Lands be added to the Nisga’a Lands on an expedited basis.” The Nisga’a  
enclosed a form of agreement to allow for the addition of the Nasoga  
Lands to the Nisga’a Lands, to be completed by Canada, the Province,  
and the Nisga’a.  
b) On July 6, 2016, the Minister of Indigenous and Northern Affairs wrote to  
the Nisga’a stating:  
I understand your urgency in obtaining a signed agreement on this matter  
and want to assure you that Indigenous and Northern Affairs Canada is  
supportive of this initiative. Departmental officials are working closely with  
British Columbia to ensure the addition to lands is consistent with  
paragraph 11 of Chapter 3 of the Nisga’a Final Agreement. I have asked  
departmental officials to act expeditiously to carry out the required due  
diligence and to keep you informed of progress.  
c) On January 21, 2019, Canada wrote to Lax Kw’alaams and Metlakatla and  
confirmed Canada has “been advised that if the Purchase is carried out,  
Reece v. Canada (Attorney General)  
Page 29  
British Columbia and Nisga’a Nation will seek Canada’s consent to  
complete the Addition immediately following”.  
[105] The Allied Tribes suggest that, given the expectation that Consent will follow  
immediately after the Disposition, it is not reasonable or fair to expect the Allied  
Tribes to have to bring a second injunction application if it fails in obtaining an  
injunction to prevent the Disposition. I agree.  
[106] The Disposition and Consent have been addressed by the Province and the  
Nisga’a as a two-step process, and the harm which the Nisga’a argue they will suffer  
assumes that the Nasoga Lands will be added to the Nisga’a Lands if the injunction  
is not granted. The Nisga’a did not argue that the Disposition could proceed in the  
absence of agreement on the Consent. In other words, the Nisga’a did not express  
any interest in owning the Nasoga Lands unless those lands were to be added to the  
Nisga’a Lands.  
[107] Consistent with the just, speedy and inexpensive determination of the issues  
raised by the parties on this application, I find that it is not premature for the Allied  
Tribes to bring its application for an injunction in relation to the Consent in the same  
application it seeks injunction relief in relation to the Disposition.  
2.  
Will the Allied Tribes suffer irreparable harm if the  
injunction is not granted?  
a)  
Irreparable Harm  
[108] In 1985, the B.C. Court of Appeal confirmed an injunction issued to protect  
claimed aboriginal rights in MacMillan Bloedel. A more recent case granting an  
injunction to protect aboriginal interests is Wahgoshig First Nation v. Ontario, 2011  
ONSC 7708 [Wahgoshig]. In Wahgoshig, the Court reviewed the history of such  
injunctions, and outlined the kinds of irreparable harm which indigenous nations may  
suffer pending determination of their rights:  
[50]  
In MacMillan Bloedel Ltd. v. Mullin, [1985] B.C.J. No. 2335, [1985] 2  
C.N.L.R. 58 (C.A.) ("MacMillan Bloedel"), the British Columbia Court of  
Appeal held, at paras. 54-55 and 73, adopting the words of Muirhead J. in  
   
Reece v. Canada (Attorney General)  
Page 30  
Foster v. Mountford and Rigby Ltd. (1976), 14 A.L.R. 71 (Aus. N.T.S.C.), at p.  
75 A.L.R.:  
The Indians wish to retain their culture on Meares Island as well as in  
urban museums.  
. . . . .  
These people have come to the law for relief and protection. . . .  
[M]onetary damages cannot alleviate any wrong to the plaintiffs that  
may be established and perhaps, there can be no greater threat to  
any of us than a threat to one's family and social structure.  
[51]  
The Canadian courts have been called upon many times to determine  
conflicts arising from the interaction between resource companies'  
development activities on Crown lands and the effects on Aboriginal and  
treaty rights. A significant body of jurisprudence has developed, which has  
recognized that negative effects on Aboriginal and treaty rights and  
restrictions on the ability to exercise such rights in preferred places  
constitutes irreparable harm. Such cases have considered effects of  
development on Aboriginal hunting, fishing, trapping, harvesting rights and on  
the less tangible rights and values of identity and cultural and spiritual  
relationships with the land. As recognized by Smith J. in [page648] Platinex  
Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, [2006] O.J. No. 3140,  
272 D.L.R. (4th) 727 (S.C.J.) ("Platinex"), at paras. 79-80:  
Irreparable harm may be caused to KI . . . because it may lose land that  
is important from a cultural and spiritual perspective. No award of  
damages could possibly compensate KI for this loss.  
It is critical to consider the nature of the potential loss from an Aboriginal  
perspective. From that perspective, the relationship that Aboriginal  
peoples have with the land cannot be understated. The land is the very  
essence of their being. It is their very heart and soul. No amount of  
money can compensate for its loss. Aboriginal identity, spirituality, laws,  
traditions, culture, and rights are connected to and arise from this  
relationship to the land. This is a perspective that is foreign to and often  
difficult to understand from a non-Aboriginal viewpoint.  
[52]  
Irreparable harm to Aboriginal peoples has further been judicially  
recognized when activities such as logging (MacMillan Bloedel; Hunt v.  
Halcan Log Services Ltd., [1987] B.C.J. No. 146, 1986 BCSC 863; Lax  
Kw'alaams Indian Band v. British Columbia (Minister of Forests), [2004]  
B.C.J. No. 1102, 2004 BCCA 306 ("Lax Kw'alaams")), excavation  
(Touchwood File Hills Qu'Appelle District Chiefs Council Inc. v. Davis, [1985]  
S.J. No. 514, 41 Sask. R. 263 (Q.B.)) and other development activities would  
interfere with or damage culturally significant sites and artifacts such as burial  
sites and sacred sites.  
Reece v. Canada (Attorney General)  
Page 31  
[109] In MacMillan Bloedel at 156, the Court of Appeal also discussed the harm  
which may arise if evidence cannot be preserved:  
Preservation of Evidence  
A separate consideration that leads to the same conclusion is the need to  
preserve evidence. The Indians need time to carefully examine the area to be  
logged to see whether there is any evidence that ought to be recorded or  
preserved. Of course, a chambers judge would be able to make any special  
orders required.  
[110] As discussed above, I am satisfied that the Allied Tribes have established a  
strong claim to aboriginal title of the Nasoga Lands. This claim is supported by a  
number of significant features of the lands. The foundational stories of certain of the  
original nine tribes are located on these lands. The so-called double feast” is related  
to these lands. Locations on the Nasoga Lands stand as markers of two of the  
spanaxnox which attended the double feast. On one cliff side of the Nasoga Lands,  
there are ochre markings which the Allied Tribes say represent an assertion of  
control by their Chief Ligeex. On the Nasoga Lands themselves, the Allied Tribes  
say there are remnants of culturally modified trees, and a depression which has  
been identified as a possible village site.  
[111] The investigations of the Nasoga Lands conducted by the Lax Kw’alaams to  
date were described by Mr. Reece as follows:  
a) Field workers have visited the Nasoga Lands, including near Ten Mile  
Point and the neck of the peninsula in the Nasoga Gulf, and observed the  
pictographs painted by or on behalf of Chief Ligeex at two different  
locations.  
b) Near the pictographs, field workers observed several culturally modified  
trees and a depression or clearing, which suggests that a historic village  
or campsite was also located there. Photographs of two culturally modified  
trees were attached to Mr. Reece’s affidavit.  
c) At the neck of the peninsula on the Nasoga Lands, field workers observed  
at least 20 culturally modified trees.  
Reece v. Canada (Attorney General)  
Page 32  
d) Throughout the Nasoga Lands, field workers have observed an  
abundance of a plant known as Devil’s Club (“wooms” in the Sm’algyx  
language), which corresponds to a traditional name, “k’wooms”, for the  
Nasoga Lands (“place of Devil’s Club”)  
[112] Mr. Reece exhibited to his affidavit a map of the Nasoga Lands which records  
ten distinct place names in the Sm’algyx language, a language of the Allied Tribes.  
These place names are distributed throughout the entirety of the Nasoga Lands. In  
addition, two of the place names relate to the homes of spanaxnox important to the  
Allied Tribes.  
[113] Mr. Reece exhibited to his affidavit correspondence from the Province and the  
Nisga’a regarding an application made by Dr. Martindale to the Province for a  
heritage investigation permit for archaeological work on the Nasoga Lands. In this  
correspondence, the Nisga’a object to the granting of such a permit for a number of  
reasons, including that they dispute the Allied Tribes’s claims of title to the area, they  
say that Dr. Martindale is not impartial and supports the Allied Tribes, and they  
require access to any artifacts obtained and the right to designate the Nisga’a  
Museum as the repository for any artifacts the Nisga’a determine are Nisga’a  
artifacts. The Nisga’a took the position that an archaeological permit could only be  
granted with the consent of the Nisga’a.  
[114] The impacts of a transfer of the Nasoga Lands to the Nisga’a are described  
by Mr. Reece to include:  
a) Harm to the Allied Tribes’s legal system:  
i. If the Nisga’a are granted the right to exclude others and decide on  
land use in ways inconsistent with the Allied Tribes’s ownership of the  
lands pursuant to Tsimshian law, the Allied Tribes’s entire legal system  
in connection with the lands would be undermined.  
Reece v. Canada (Attorney General)  
Page 33  
ii. The transfer of the lands to the Nisga’a in the manner contemplated  
would violate the sacred obligations of the Allied Tribes to protect the  
integrity of their territory.  
iii. The transfer would undermine the Tsimshian legal system in resolving  
disputes about ownership of territory and other rights, including the  
recitation of histories of ownership and the witnessing of such  
recitations at formal ceremonial gatherings, or feasts.  
b) The loss of a place of cultural and social significance to the Allied Tribes:  
i. The Nisga’a would have the ability to exclude the Allied Tribes from  
continuing to use the Nasoga Lands in the same way they have used  
these lands for thousands of years.  
ii. The Allied Tribes would lose their connection to an important and  
irreplaceable part of their territory, a place for which they have a  
physical and spiritual connection as confirmed by the spanaxnox sites  
located on the Nasoga Lands.  
iii. The Allied Tribes would lose the ability to document and obtain  
evidence to prove their ownership of the lands, without obtaining the  
consent of the Nisga’a first and complying with any terms imposed by  
the Nisga’a on their research.  
[115] Mr. Leighton’s evidence echoes these statements by Mr. Reece. In his own  
words, he states:  
It would also jeopardize: (i) our right to decide how the Subject Lands will be  
used; (ii) our right to enjoy and occupy the Subject Lands; (iii) our right to the  
economic benefits of the Subject Lands; (iv) our right to make decisions  
about how the Subject Lands and their resources are used; and (v) our right  
to pro-actively use and manage the Subject Lands. For example, a decision  
by the Nisga'a Nation to use the powers under the Nisga'a Final Agreement  
to develop these lands in a significant way could change their character  
forever. Even a decision by the Nisga'a Nation to deforest the lands in part  
would risk removing the many culturally modified trees that I know have been  
Reece v. Canada (Attorney General)  
Page 34  
documented at various places on the Subject Lands, including at the neck of  
the Subject Lands and Ten Mile Point.  
As set out above, the Subject Lands are, and lie at, an important part of the  
Territory, they provide an entryway into Fishery Bay, and have had  
tremendous political, economic, and spiritual significance to us for thousands  
of years. If the Subject Lands were transferred to others to exercise control  
over them, it would disconnect us from an important and irreplaceable part of  
our Territory. This would cause very serious harm and negative impacts to  
our identity, culture, and spirituality as Coast Tsimshian people.  
[116] The Nisga’a have indicated that their intention is to bring the Nasoga Lands  
within the Nisga’a Lands and to develop them. When arguing against this injunction,  
the Nisga’a point to the tax revenue they would lose if they are not able to tax  
developments on the Nasoga Lands pursuant to the Treaty. Further, the urgency  
with which the Nisga’a seek to complete the Disposition and Consent is directly tied  
to the environmental assessment permits for two pipelines. The evidence supports a  
conclusion that the present intention of the Nisga’a is to permit pipelines and  
possibly an LNG plant to be constructed on the Nasoga Lands.  
[117] The Allied Tribes submit that their ability to prove aboriginal title will be  
irreparably harmed if the Disposition and Consent complete. The construction of  
pipelines, and a possible LNG plant, may destroy evidence critical to establishing the  
Allied Tribesuse and control of the lands at the relevant times. Furthermore, any  
development of the lands is likely to interfere with sites sacred to the Allied Tribes.  
[118] Once the lands are transferred to the Nisga’a Lands system, they are outside  
many of the controls of the Crown. The obligation on the Crown to consult with the  
Allied Tribes on future uses is impaired, as only those uses which require a federal  
or provincial permit will engage the Crown duty to consult. In its letter dated July 20,  
2020, the Province acknowledged that if the Disposition and Consent are completed,  
a) the Crown’s duty to consult with the Allied Tribes regarding development  
decisions on the Nasoga Lands is more limited;  
Reece v. Canada (Attorney General)  
Page 35  
b) the Nasoga Lands will be removed from the Provincial Forest, and forest  
licence applications by the Lax Kw’alaams and Metlakatla which are  
currently under review will cease to apply to the Nasoga Lands; and  
c) future access and use of the area, including for harvesting activities, will  
be subject to the Treaty and applicable laws enacted by the Nisga’a  
Lisims Government.  
[119] In a letter dated to the Nisga’a dated May 19, 2021, the Province confirmed  
that it could provide the Allied Tribes with the following assurances:  
On wildlife management:  
The Minister of Forests, Lands, Natural Resource Operations and  
Rural Development will remain "responsible for wildlife" within the  
Nass Wildlife Area. Nisga'a Lisims Government will continue to work  
with the Province and Canada to co-manage wildlife within the Nass  
Wildlife Area as provided for by the Nisga'a Treaty.  
If any future projects are proposed that may have an adverse effect  
on the environment, including grizzly bear, moose or their habitat, the  
impacts will be assessed in accordance with Chapter 10 of the  
Nisga'a Treaty and any applicable environmental impact legislation.  
On access:  
The Nisga'a Lisims Government will provide access to Nisga'a Public  
Lands, including reasonable opportunities to hunt and fish, in  
accordance with the Nisga'a Treaty.  
The Nisga'a Lisims Government is willing to commit not to  
unreasonably refuse applications for the appropriate authorizations  
required under the Nisga 'a Land Act if Lax Kw'alaams Band and  
Metlakatla First Nation wish to undertake archeological studies that go  
beyond "temporary non-commercial and recreational uses" as  
contemplated under the Nisga'a Treaty.  
If at some point in the future, the Nisga'a Lisims Government seeks to  
designate any lands in the Nasoga Gulf area as Nisga'a Private  
Lands, it will do so in accordance with the notice and engagement  
provisions set out in Chapter 6 of the Nisga'a Treaty.  
[120] The difficulty with such assurances is that the Allied Tribes’s interests are left  
to the discretion of the Nisga’a in many key areas. For example, it is the Nisga’a who  
will decide what is reasonable access to exercise aboriginal rights, whether  
authorizations for archeological studies will be issued, and whether the Nasoga  
Lands will become Nisga’a Private Lands. The Nisga’a have no legally binding  
Reece v. Canada (Attorney General)  
Page 36  
obligation to consult or accommodate the Allied Tribes’s aboriginal rights or title. In  
fact, the Nisga’a oppose the recognition of any aboriginal title of the Allied Tribes in  
the Nasoga Lands.  
[121] The Treaty gives the Nisga’a considerable rights to manage resources on  
their own lands, including decisions to cut down the stands of timber presently found  
on the Nasoga Lands. Pursuant to the Nisga’a Forest Act, the Nisga’a are  
empowered to regulate all uses of the forest on their lands. The Nisga’a are not  
required to consult with the Allied Tribes before undertaking such decisions.  
[122] Similarly, while pursuant chapter 6, s. 4 of the Treaty, the Nisga’a will give  
reasonable opportunities to the public to hunt and fish on Nisga’a Public Lands, only  
the Nisga’a have the right to hunt and fish on these lands. There is nothing in the  
Treaty which purports to give other Indigenous groups any priority to fish and wildlife  
resources as against other members of the public.  
[123] The Allied Tribes assert a need to conduct archeological studies of the  
Nasoga Lands, for cultural purposes and to assist in their claim for aboriginal title. If  
the lands are transferred to the Nisga’a, the Allied Tribes would require an  
investigative permit from the Nisga’a. Pursuant to s. 8.1 of the Nisga’a Land Act,  
investigative permits may be granted if the director considers it to be in the interests  
of the Nisga’a Nation. It is difficult to imagine a circumstance where it would be in the  
interest of the Nisga’a Nation to enable archeological research to benefit another  
Indigenous group seeking to establish title and rights within the NWA or the Nisga’a  
Lands. The Allied Tribes argue that this concern is not academic, and point to the  
fact the Nisga’a have objected to the issuance of permits to Dr. Martindale in the  
past.  
[124] I am satisfied that the Allied Tribes will suffer irreparable harm if the  
Disposition and Consent are proceeded with at this time. I am satisfied that the  
irreparable harm asserted by the Allied Tribes is sufficiently grounded in the  
evidence; it is not mere speculation or assertion of possibility. I accept the harm as  
articulated by Mr. Reece and Mr. Leighton will be irreparable for the Allied Tribes. In  
Reece v. Canada (Attorney General)  
Page 37  
addition, I find the most significant harm is the transfer of the Nasoga Lands into the  
control of the Nisga’a under the Treaty. I find this transfer will result in a significant  
impairment of the Allied Tribes’s right to be consulted and, potentially,  
accommodated by the Crown prior to any potential infringement of their rights and  
title in the Nasoga Lands pending determination of their claims.  
b)  
Non-Derogation Clauses  
[125] The defendants argue that the Treaty itself will protect the Allied Tribes’s  
aboriginal rights and title, should they be established. The Treaty contains a series  
of non-derogation clauses which state, in part, that if a court finally determines that  
any aboriginal people, other than the Nisga’a, have rights under s. 35 of the  
Constitution Act, 1982 that are adversely affected by a provision of the Treaty, such  
provision will operate and have effect to the extent that it does not adversely affect  
those rights. If such a provision cannot operate in a way that it does not adversely  
affect the rights of the other aboriginal people, the parties to the Treaty will make  
best efforts to amend the Treaty to remedy or replace the provision.  
[126] Mr. Azak set out his understanding of the non-derogation clauses as follows:  
… As a member of the Nisga’a Tribal Council, I understood that these non-  
derogation provisions were a compromise. On the positive side, these  
provisions ensured that the Nisga’a Treaty and its implementation would not  
be indefinitely delayed by unproven assertions of Aboriginal rights within  
portions of the Nass Area. But in exchange, the Nisga’a Nation had to bear  
the uncertainties associated with these provisions, because the Nisga’a  
Treaty would no longer operate to the extent that it adversely affected an  
Aboriginal right that may be established in the Nass Area.  
[127] The transaction documents regarding the proposed transfer of the Nasoga  
Lands are said to contain a non-derogation clause stating that the transfer will not  
affect the aboriginal rights that aboriginal people, other than the Nisga’a Nation, may  
have in respect of the Nasoga Lands prior to its disposition. However, these  
documents were not produced in evidence on this application and have not been  
produced to the Allied Tribes to date.  
 
Reece v. Canada (Attorney General)  
Page 38  
[128] As a result of these non-derogation clauses, the Nisga’a argue that no  
disposition of the Nasoga Lands could fundamentally interfere with or infringe any  
asserted aboriginal title.  
[129] I disagree. The non-derogation clauses in the Treaty only operate once a  
court makes a final determination of aboriginal rights. It says nothing about impacts  
on aboriginal rights pending a final determination. This is confirmed in  
correspondence from the Nisga’a to the Allied Tribes where the Nisga’a state that “if  
you ever establish by way of final judicial determination or the negotiation of a  
treaty or land claims agreement with the Crown that you do have any of your  
asserted rights or title in respect of the area subject to the Transactions, those  
established rights or title will not be adversely affected.” [emphasis added]  
[130] It is no answer to the Allied Tribes to say that a Nisga’a decision to bring the  
lands into their land system, and develop the lands for commercial uses, will not  
impact the aboriginal rights of the Allied Tribes once a final determination of rights is  
made, when the very ability of the Allied Tribes to prove their rights in a court of law  
is fundamentally adversely impacted by the decisions of the Nisga’a in the interim. In  
essence, the Nisga’a propose to undermine the ability of the Allied Tribes to prove  
their aboriginal rights and title, and thus deprive the Allied Tribes of the very  
protections purportedly given in the Treaty.  
[131] Similarly, the Nisga’a could fundamentally infringe the aboriginal rights and  
title of the Allied Tribes prior to a determination by a court. The Nisga’a could harvest  
all timber on the lands without any obligation on them to consult with the Allied  
Tribes, thereby fundamentally interfering with the Allied Tribes’s ability to exercise  
any rights associated with a standing forest. The Nisga’a could take steps which  
would prevent the Allied Tribes from uncovering archeological evidence which would  
assist their claim. None of these steps are prevented by the non-derogation clauses,  
because the Allied Tribes have not yet proven their aboriginal rights.  
[132] As such, I find that the non-derogation clauses do not alleviate the irreparable  
harm the Allied Tribes would suffer if the Disposition and Consent proceed.  
Reece v. Canada (Attorney General)  
Page 39  
3. Does the balance of convenience favour an injunction?  
[133] The balance of convenience addresses which party will suffer the greater  
harm from either granting or refusing the injunction. In addressing the balance of  
convenience, the court must consider the status quo at the time of the application,  
and how that status quo may be affected if the injunction is, or is not, granted.  
[134] At present, the status quo with respect to the Nasoga Lands is that they are  
Crown lands, and part of the NWA under the terms of the Treaty. The Nasoga Lands  
are presently undeveloped. Within the NWA, members of the Nisga’a Nation may  
exercise non-exclusive harvesting rights. Members of the Allied Tribes may also  
exercise their aboriginal rights on and over the Nasoga Lands.  
[135] Mr. Azak sets out evidence in his affidavit relating to the Nisga’a’s intention  
with respect to the acquisition of the Nasoga Lands. He describes the following:  
a) On November 24, 2014, Prince Rupert Gas Transmission Ltd. was issued  
an environmental assessment permit for a proposed natural gas pipeline  
and associated infrastructure, which would result in pipelines running  
through the Nasoga Lands. The certificate is valid if the project is  
substantially started by November 25, 2024.  
b) On November 25, 2014, Westcoast Connector Gas Transmission Limited  
received an environmental assessment permit for a proposed natural gas  
pipeline, which would result in pipelines running through the Nasoga  
Lands. The certificate is valid if the project is substantially started by  
November 25, 2024.  
c) The two pipeline projects may give rise to economic benefits to the  
Nisga’a, and in 2015 the Nisga’a approached the Province with a proposal  
to purchase the Nasoga Lands and lease the adjacent foreshore.  
d) The Nisga’a wished to add the Nasoga Lands to the Nisga’a Lands as  
defined in the Treaty, and so notified the Province and Canada that it  
 
Reece v. Canada (Attorney General)  
Page 40  
would seek their consent pursuant to the Treaty to expand the boundaries  
of the Nisga’a Lands to include the Nasoga Lands.  
e) The economic benefits anticipated by the Nisga’a are property taxes the  
Nisga’a are entitled to collect against any uses of the Nasoga Lands,  
including the anticipated pipelines.  
[136] The Nisga’a argue that if an injunction is granted, it would negate the benefit  
provided to the Nisga’a under the Treaty. The Nisga’a would lose the ability to obtain  
property tax revenue from the lands added to the Nisga’a Lands.  
[137] The Province made no submissions on the balance of convenience, focussing  
its submissions on the issues of the availability of an injunction, the impact of the  
consultation process, the strength of the Allied Tribes’s claim, and whether  
irreparable harm had been established.  
[138] Canada argued that in deciding the balance of convenience, the court must  
consider the public interest in ensuring treaty obligations are honoured and  
completed, while taking into account s. 35 rights.  
[139] Canada also argued that aboriginal nations have a right to a good faith  
consultation process, but no right to a result or particular outcome. Canada argued  
that the Allied Tribes are attempting to bypass the consultation process and impose  
their desired outcome before Canada can complete the consultation process and  
consider the Allied Tribes’s position.  
[140] Canada cautioned that courts “should be wary of usurping legislative and  
executive roles and effectively governing by interlocutory order”: Snuneymuxw First  
Nation et al. v. HMTQ et al., 2004 BCSC 205 at para. 72 [Snuneymuxw].  
[141] In assessing the balance of convenience, I have considered the irreparable  
harm established by the Allied Tribes if the injunction is not granted, the economic  
harm that would be suffered by the Nisga’a if the injunction is granted, and the public  
Reece v. Canada (Attorney General)  
Page 41  
interest in honouring treaty obligations and respecting the Crown’s conduct of the  
consultation process pending final determination of rights.  
[142] With respect to the economic interests advanced by the Nisga’a, the Nisga’a  
did not quantify what revenue they expected from taxes levied against developments  
on the Nasoga Lands. They also did not bring forward any evidence to establish  
what proportion of their potential tax revenue from a pipeline project would arise  
from the Nasoga Lands as against their existing, significant Nisga’a Lands. The  
potential economic harm was not well established on the evidence before me.  
[143] I contrast the evidence of economic harm in the case before me, with the  
evidence in the case of Yahey v. British Columbia, 2017 BCSC 899. In Yahey, the  
Blueberry River First Nation sought an injunction preventing any further industrial  
development in most of their claimed territory. The Court found that the Province had  
established, through detailed affidavit evidence, that it would lose revenue, including  
bonuses paid to the Province, annual rent and royalties, the authorization process,  
and various tax-based revenues. The evidence also established adverse effects on  
third parties, including business losses and job losses, and further losses down the  
supply chain. Numerous affidavits from third party companies in the oil and gas and  
timber industries were accepted by the Court. The Court also considered the breadth  
of the injunction and the lack of clarity in what activities were intended to be  
enjoined, in that the Blueberry River First Nation was seeking to halt all further  
industrial activities in most of their large territory.  
[144] The Nisga’a’s evidence on this application falls far short of the evidence  
accepted by the Court in Yahey.  
[145] The Allied Tribes also argue that the Nisga’a have not established a likelihood  
that they will suffer harm if the injunction is granted.  
[146] The Allied Tribes submit that the Nisga’a entered into two separate benefit  
agreements in 2014 in relation to the Prince Rupert Gas Transmission projectone  
with the company and one with the Province. Significant economic benefits flow to  
Reece v. Canada (Attorney General)  
Page 42  
the Nisga’a under these agreements, but neither are contingent on the Nisga’a  
owning the Nasoga Lands. The Nisga’a agree that they will receive benefits whether  
or not they own the Nasoga Lands, but argue that they will lose the ability to collect  
property tax revenue if the Nasoga Lands are not brought within the Nisga’a Lands.  
[147] Finally, the Allied Tribes point to an initial project description of the KSI  
LISIMS LNG Natural Gas Liquefaction and Marine Terminal Project, which the Allied  
Tribes argue is a separate project developed by the Nisga’a and will accept natural  
gas from either of the two pipelines for which environmental assessment certificates  
have been issued. The Allied Tribes argue that there is no evidence before the Court  
that the KSI LISIMS LNG Natural Gas Liquefaction and Marine Terminal Project  
project will require the pipelines to cross the Nasoga Lands. This submission was  
not countered by the Nisga’a.  
[148] With respect to the public interest, I agree that there is a public interest in  
furthering the goals of the Treaty. However, there is an equally compelling public  
interest in maintaining the honour of the Crown in its relationship with Indigenous  
nations which have not yet had their claims of title and rights adjudicated.  
[149] In the case before me, the Nisga’a concluded a Treaty after decades of hard  
fought legal battles and negotiations. They advanced the law in the area of  
aboriginal rights in significant ways for all Indigenous people in Canada. However,  
their Treaty does not create rights which are superior to those of its neighbouring  
aboriginal nations in lands which are not part of the Nisga’a Lands.  
[150] In 1996, the Nisga’a and the Tsimshian Nation (i.e., the Allied Tribes) entered  
into a memorandum of understanding wherein the Allied Tribes agreed they would  
not challenge the boundaries of the Nisga’a Lands or the Nisga’a Fee Simple Lands  
as defined in the agreement in principle between the Nisga’a and the Crown. The  
boundary agreed to by the Allied Tribes excluded the Nasoga Lands from the  
Nisga’a Lands. The memorandum of understanding provides that the parties would  
agree to continue to honour the common territories of the other nation, as described  
in the nations’ traditional territory maps.  
Reece v. Canada (Attorney General)  
Page 43  
[151] I do not agree that an injunction would negate the benefits the Nisga’a  
obtained under the Treaty. While the Treaty provides that the Nisga’a can add lands  
to their Treaty lands, it is not an absolute right. If the Nisga’a were correct, they  
would be able to override the commitment they made to the Allied Tribes in the 1996  
memorandum of understanding, over the Allied Tribes’s opposition.  
[152] Accordingly, it is my view that the balance of convenience weighs in favour of  
the Allied Tribes. As described above, the Allied Tribes have demonstrated the  
irreparable harm they would suffer if injunctive relief is not granted. In contrast, the  
evidence of harm the Nisga’a would likely suffer if an injunction is granted is less  
persuasive. The Nisga’a have largely argued that the harm they would suffer is  
economic in nature. However, this appears to be limited to the property taxes which  
may be levied if the Disposition and Consent are completed. Weighed against the  
irreparable damage that the Disposition and Consent could do to the Allied Tribes’s  
ability to prove and exercise their Aboriginal rights and title, it follows injunctive relief  
should be granted.  
III.  
CONCLUSION  
[153] In the case before me, the defendants argue that granting injunctive relief  
essentially provides Allied Tribes with the final remedy they seek. They argue the  
lands will not be available to the Nisga’a until the Allied Tribes bring their claim to  
trial, and with the injunction in place there is no incentive for the Allied Tribes to  
advance its litigation.  
[154] I agree that the Court must be cautious in granting an injunction which may  
result in a party obtaining the relief they seek at trial before the trial has begun.  
However, I am satisfied that this risk can be accommodated.  
[155] The Allied Tribes concluded this application with the submission that their  
primary objective is to give the parties time to engage in a dispute resolution process  
before any decision is made on the Disposition and Consent. To that end, the Allied  
Tribes would be content for an injunction to issue for a limited period of time to allow  
 
Reece v. Canada (Attorney General)  
Page 44  
for that process to unfold, with an opportunity to apply for an extension of the  
injunction if necessary.  
[156] I find that the balance of convenience favours granting the injunction. I am not  
satisfied that the defendants have established harm from granting the injunction  
which outweighs the irreparable harm the Allied Tribes have established if the  
Disposition and Consent proceed unimpeded. However, I am mindful of the caution  
expressed in Snuneymuxw and of the danger in granting an injunction which may  
extend for many years if it were to last until the Allied Tribes have brought their title  
claim to trial.  
[157] As such, I order that the Province and Canada are enjoined from proceeding  
with the proposed Disposition and Consent for a period of 18 months. The Allied  
Tribes have leave to apply for an extension of the injunction, if good faith  
negotiations between the Province, Canada, the Nisga’a, and the Allied Tribes have  
not completed in that time. The Allied Tribes asked that I seize myself of this matter.  
In the circumstances, I agree that it is appropriate that I seize myself of any future  
applications to extend this injunction.  
W.A. Baker J.”  



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