Malii v. British Columbia

2024 BCSC 2062 Malii v. HMTK

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Malii v. HMTK, 2024 BCSC 2062 Date: 20241023 Docket: S036687 Registry: Vancouver Between: Malii also known as Glen Williams, Gwaas Hlaam also known as George Philip Daniels, Luuxhon also known as Don Russell, Gamlaxyeltxw also known as Wilhelm Marsden, Sindihl also known as Graham Morgan, Watakhayetsxw also known as Deborah Good, Gwinuu also known as Phyllis Haizimsque, Wii'litsxw also known as Gregory Rush, Haizimsque also known as Verna Howard, on behalf of themselves and in their capacity as the Gitanyow Hereditary Chiefs and on behalf of all members of the Gitanyow Nation Plaintiffs And His Majesty the King in Right of the Province of British Columbia, The Attorney General of Canada and Skii Km Lax Ha also known as Darlene Simpson, on behalf of herself and, in her capacity as Tsetsaut/Skii Km Lax Ha Hereditary Chief, on behalf of all members of the Tsetsaut/Skii Km Lax Ha Nation Defendants And His Majesty the King in Right of the Province of British Columbia and The Attorney General of Canada Third Parties Before: The Honourable Justice Stephens Oral Reasons for Judgment (Plaintiffs' Application to Strike Certain Portions of the Province's Amended Response to Fourth Further Amended Notice of Civil Claim re Nisga'a Final Agreement) In Chambers Counsel for the Plaintiffs: P. Grant, KC J. Phillips, KC E. Ritcey Counsel for the

Defendant and Third Party, His Majesty the King: K. Bergner C. Ohama-Darcus M.E. Casey Counsel for the Defendant and Third Party, The Attorney General of Canada: A. Harvey J. Ingram Counsel for Skii km Lax Ha, also known as Darlene Simpson, also known as Chief Simpson, on behalf of herself and, in her capacity as Tsetsaut/Skii km Lax Ha Hereditary Chief, on behalf of all members of the Tsetsaut/Skii km Lax Ha Nation: A. Fontaine Counsel for the Nisga'a Nation, as represented by the Nisga'a Lisims Government: A. Sabur Y. Gao (October 23, 2024 only) Place and Date of Hearing: Vancouver, B.C. October 2 and 23, 2024 Place and Date of Judgment: Vancouver, B.C. October 23, 2024 [1] THE COURT: The plaintiffs in this action apply by notice of application filed July 26, 2024, to strike certain paragraphs and portions of paragraphs of the Province's amended response to the plaintiffs' fourth further amended notice of civil claim (the "Amended Response"). [2] The nature of this action has been described in previous decisions including Nisga'a Nation v. Malii, 2024 BCCA 313 at para. 2 [Nisga'a Nation]. [3] The scope of the portions sought to be struck have changed since the filing of this application. The portions currently sought to be struck are set out in a revised Schedule "A" to the notice of application and relate to paras. 5, 52-55, and 87 of the Province's Amended Response. [4] I

append as Appendix "A" the portions of the Province's Amended Response sought to be struck. [5] In brief, para. 5 of the Amended Response of the Province pleads the relevance of the Nisga'a Final Agreement (the "NFA"). [6] At paras. 52-55, the Province pleads a description of certain aspects of the NFA. [7] Paragraph 87, again, refers to the NFA in the context of a plea, specifically referring to the words "the Nisga'a Nation." [8] The Province contends that the impugned paragraphs, read together with other parts of the Province's Amended Response, including part 3 paras. 62(d), 66, and 73, advance at least two arguments in defence at trial: these paragraphs go to supporting at least two potential, substantive defences that the Province may assert: (1) that a declaration of Aboriginal title cannot or should not be issued for lands subject to overlapping established treaty rights, and (2) that the plaintiffs have not established exclusive historic occupation with respect to the entirety of the Claim Area. Both of these are viable defences. [Province's application response, at para. 20] [9] The plaintiffs dispute this and contend that any defence based on the NFA is not tenable at law and irrelevant. They argue that the NFA is irrelevant at this stage of the proceedings and in light of their reframing of their amended notice of civil claim. They argue that the plaintiff parties

need to be free to draft and reframe their claims to limit the scope of the issues in the proceeding to permit or allow the proportionate, efficient, and proper resourcing of this case. Otherwise, they argue, the litigation of Aboriginal title will take hundreds of days. [10] The plaintiffs contend that the impugned paragraphs should be struck on any or all of the grounds in the Supreme Court Civil Rules, R. 9‑5. [11] The plaintiffs argue that certain comments made by this Court and the Court of Appeal disposing of the Nisga'a Nation's application to be added as a defendant are dispositive of the NFA not being relevant to this proceeding and render the impugned paragraphs in the Province's Amended Response irrelevant. The plaintiffs refer to, for example, paras. 9, 12-15, 38, 47, and 51-52 of the Court of Appeal's reasons in Nisga'a Nation. The plaintiffs contend that in light of those comments and the existence of a non‑derogation clause in the NFA, the existence of the NFA is irrelevant to this action. [12] The plaintiffs further argue in oral submissions that the "straight wording" of the NFA itself also render the impugned paragraphs of the Province's Amended Response bound to fail. The plaintiffs further rely on the case of Willson v. British Columbia (Attorney General), 2007 BCSC 1324. [13] The test to strike out a pleading is a high burden. The plain and obvious standard

applies to all branches of R. 9‑5. In order to succeed, applicants seeking to strike pleadings must establish that it is plain and obvious that the pleadings disclose no reasonable defence, are unnecessary, scandalous, frivolous, vexatious, may prejudice or embarrass, or are an abuse of the Court's process: British Columbia (Director of Civil Forfeiture) v. Lam, 2023 BCSC 159 at para. 20. [14] Striking a pleading or a portion thereof under R. 9‑5(1) is a "draconian remedy that is only granted in egregious circumstances": Sahyoun v. Ho, 2015 BCSC 392, at para. 144, appeal dismissed as abandoned 2017 BCCA 96. The approach must be generous and err on the side of permitting a novel but arguable claim or defence to proceed to trial: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 66, citing Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21. [15] Having considered the submissions on this application, I am not persuaded by the plaintiffs that the impugned paragraphs are pleadings which are plain and obviously defective in the meaning of the motion to strike jurisprudence. [16] I find Willson, relied on by the plaintiffs, to be distinguishable from the application before me. In Willson, the action was different than the action which is before me. [17] I find that the decision of this Court in Malii v. British Columbia, 2024 BCSC 85 and of the Court of Appeal in

Nisga'a Nation, both of which concerned whether the Nisga'a Nation should be added as a defendant to this action, is not dispositive in the plaintiffs' favour on this application such that the impugned paragraphs in the Province's Amended Response should be struck out. [18] I need not go further than find that the impugned paragraphs of the Province's Amended Response, read in the context of the Province's response as a whole, raise issues which are not plain and obviously bound to fail. [19] The conclusion that this high threshold on a motion to strike has not been met is determinative of this application, and I need not -- and do not -- make any findings or conclusions about the interpretation or the true construction of the provisions of the NFA on this application. [20] In this latter regard, in the course of the hearing of this notice of application, the Province advised the court that counsel for the Nisga'a Lisims Government and Nisga'a Nation, who was attending the hearing, raised a concern that a portion of the plaintiffs' argument concerned the interpretation of the NFA and engaged s. 41 of the NFA and required notice be given to the Nisga'a Nation. This Court adjourned the hearing of the notice of application and permitted the Nisga'a Nation to make submissions to the Court. [21] I have considered the submissions of the Nisga'a Nation, as represented by the Nisga'a

Lisims Government, as part of the hearing of this application. Order [22] Paragraph 1 of the application filed July 26, 2024, is dismissed. [23] I further order that if and to the extent necessary, notice to the Nisga'a Nation of this application has been deemed effective for the purposes of complying with the relevant provisions of the NFA dispute resolution provisions and related implementation legislative provisions. (DISCUSSION RE COSTS AND ORDER) [24] THE COURT: All right. So I will make an order that costs of this application shall be in the cause. (SUBMISSIONS RE THE LATE FILING OF A SEPARATE NOTICE OF APPLICATION IN THIS ACTION) [25] THE COURT: I am the case management judge in this matter, and I consider I am able to make directions about matters like this, and despite counsel for the TSKLH's submission, I will make an order abridging the time for the plaintiffs to file their application with respect to Dr. Galois' deposition evidence so that it may be served and filed tomorrow, in order that it is able to be heard on November 1. [26] Having said that, Mr. Grant, I am not making any decision about whether I will hear that on November 1 or not. I am simply saying that it would be Rules-compliant to do so. I am not making any direction about priority. If there are any issues about prejudice to the TSKLH, I will have to hear them if they arise. But just in terms of your

compliance with it, I am granting an order giving you leave to file your application tomorrow, to be set down on November 1. Yes. Thank you. [27] CNSL P. GRANT: Thank you very much, Justice. [28] THE COURT: And, Court Clerk, do you have that order? Would you like me to repeat it? [29] THE CLERK: Yes, please, Justice. [30] THE COURT: All right. I think the order will be that I have granted leave for the plaintiffs to file their application for Dr. Galois' deposition evidence on or before October 24, 2024, in order to be set down for November 1, 2024. "Stephens, J." Appendix "A" Portions of the Defendant Province's Amended Response to Fourth Further Amended Notice to Civil Claim Sought to be Struck Out on this Application (portions sought to be struck shown underlined) 5. Further issues include the Gitanyow Chiefs sufficiently identifying the Indigenous group or groups that hold Aboriginal title and rights, and the boundaries as between those territories. Also, there are competing claims by other groups of Indigenous peoples and the treaty rights of the Nisga'a Nation under the Nisga'a Final Agreement, and a claim to some territory which was not occupied prior to what the Province says is the date of the assertion of Crown sovereignty (the latest possible date being 1846). There are also issues in regard to the proper scope of the declaratory relief sought, as well as the scope of damages available prior to a declaration of Aboriginal title and rights, and the ability to claim damages for tenures and interests the Province asserts were lawfully made and remain valid.

52. The Province, Canada and the Nisga'a Nation have entered into the Nisga'a Final Agreement which is a treaty within the meaning of ss. 25 and 35 of the Constitution Act, 1982. The Nisga'a Nation approved the Nisga'a Final Agreement and both the Province and Canada passed the legislation necessary to give it the force of law (the Nisga'a Final Agreement Act, S.B.C. 1999, c. 2 and the Nisga'a Final Agreement Act, S.C. 2000 c. 7). The Nisga'a Final Agreement came into force on May 11, 2000.

53. Pursuant to the Nisga'a Final Agreement the Nisga'a Nation owns certain lands (the "Nisga'a Lands") in fee simple. The Nisga'a Final Agreement provides the Nisga'a Nation with legislative jurisdiction and authority in respect of certain matters, including the ability to make laws in respect of certain matters relating to Nisga'a Lands.

54. The Nisga'a Final Agreement sets out the rights of the Nisga'a under section 35 of the Constitution Act, 1982 ("Nisga'a Treaty Rights"), as well as the geographic extent of those rights and the limitations to those rights. The Aboriginal rights, including Aboriginal title of the Nisga'a Nation, as they existed before the effective date, are modified, and continue as modified, as set out in the Nisga'a Final Agreement.

55. The Claim Area includes portions of the Nisga'a Lands and portions of the area where the Nisga'a may exercise Nisga'a Treaty Rights, including the Nass Wildlife Area.

87. Lands subject to claims of Aboriginal rights and title are often subject, as in this proceeding, to overlapping claims from other First Nations. The Plaintiffs' claims to Aboriginal title over the Claim Area should not be adjudicated without the Nisga'a Nation and any other Indigenous group which also assert Aboriginal rights or title or Treaty rights to the Claim Area or portions thereof being given the opportunity to be named as parties to this litigation. Furthermore, the Plaintiffs' claims to Aboriginal title over the Claim Area should not be adjudicated without all holders of fee simple title lands within the Claim Area being provided notice of the claim and allowed to participate in the proceeding as a condition precedent to any remedy that would affect their rights and interests in their land. The declaration remedy is not available where that person who has the interest in opposing the declaration sought is not a party.