Reece v Canada (Attorney General)

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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Page 2

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

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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

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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 conducted—and which is the

basis of his opinion—is 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 19^thcentury, 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 present—provided 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 years—as they in fact did—and 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

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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 19^thcentury 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

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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

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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

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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 years—which was to

minimize the Allied Tribes’s claim to aboriginal title and any impacts flowing from the

Disposition and Consent—I 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

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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,

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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

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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.

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[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.

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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.

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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

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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 Tribes’ use 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;

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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

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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

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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.

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[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.

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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

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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

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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 project—one

with the company and one with the Province. Significant economic benefits flow to

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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.

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[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

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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.”