Malii v. British Columbia

2025 BCSC 1129 Malii v. British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Malii v. British Columbia, 2025 BCSC 1129 Date: 20250516 Docket: S-036687 Registry: Vancouver Between: Malii also known as Glen Williams, Gwaas Hlaam also know as George Philip Daniels, Luuxhon also known as Don Russell, Gamlaxyeltxw also known as Wilhelm Marsden, Sindihl also know 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 and on behalf of all members of the Tsetsaut/Skii km Lax Ha Nation Defendants Before: The Honourable Justice Stephens Oral Reasons for Judgment (Tsetsaut/Skii km Lax Ha Nation's Application for a Stay of Proceedings or Adjournment of Trial pending SCC Appeals) Counsel for the Plaintiffs: P.R.A. Grant, KC D. Soroka R. Parmar, Articled Student W.C. Wanless C. O'Neil D. Kalmakoff P. Shedden Counsel for the Defendant, His Majesty the King in Right of the Province of British Columbia: K.B. Bergner M.C.

Ohama-Darcus M.E. Casey A.J.A. Fortin M.S. Poulin Counsel for the Defendant, the Attorney General of Canada: A. Harvey A.W. Scarth Counsel for the Defendant, 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: M.C. Power M. Mackenzie A. Fontaine R.S. Beaton E. Wolfe, Articled Student Place and Date of Trial/Hearing: Vancouver, B.C. May 14, 2025 Place and Date of Judgment: Vancouver, B.C. May 16, 2025 Overview [1] THE COURT: In this action, the plaintiffs (collectively, the "Gitanyow") seek a declaration of Aboriginal rights and title to an approximately 6,200 square kilometre area located in the mid-Nass River and Kitwanga River watershed in northwestern British Columbia: Malii v. British Columbia, 2024 BCSC 2483, at para. 7; Malii v. British Columbia, 2024 BCSC 85 at para. 1. [2] The defendant, Skii km Lax Ha, also known as Darlene Simpson, also known as Chief Simpson, on behalf of herself and her capacity as the Tsetsaut/Skii km Lax Ha Hereditary Chief and on behalf of all members of the Tsetsaut/Skii km Lax Ha Nation (the "TSKLH Nation"), applies for a stay of proceedings or, in the alternative, to adjourn the trial of this action scheduled to commence in 12 days in light of recent decisions of the

Supreme Court of Canada granting leave to appeal from two interlocutory decisions in this action. [3] Specifically, on April 24, 2025, the Supreme Court of Canada granted leave to appeal from two decisions of the Court of Appeal: (a) Nisg̱a'a Nation v. Malii, 2024 BCCA 313 [Nisga'a Joinder BCCA], aff'g 2024 BCSC 85, leave to appeal to SCC granted, 41516 (24 April 2025); and (b) Malii v. British Columbia, 2024 BCCA 406 [TSKLH Joinder BCCA], rev'g in part 2024 BCSC 1432, leave to appeal to SCC granted, 41644 (24 April 2025). [4] Nisga'a Joinder BCCA affirmed a decision of this Court which dismissed an application by the Nisga'a Nation to be added as a defendant in this action. [5] TSKLH Joinder BCCA affirmed a decision of this Court to add the TSKLH Nation as a defendant in this action but set aside another part of that decision of this Court which would have permitted the TSKLH Nation to file a third party claim for Aboriginal rights and title. [6] Stage 1 of the trial of this action, set for 131 days in duration, had been previously scheduled to commence on May 5, 2025, but after the Supreme Court of Canada leave decisions, was adjourned until May 28, 2025, to allow for the hearing of this adjournment application. [7] Stage 1 of the trial concerned, generally speaking, the plaintiffs' claim in the action to Aboriginal title. [8] The Gitanyow oppose both a stay and any

adjournment of the trial of the action, asserting prejudice from any stay or adjournment of the trial arising from: the plaintiffs' longstanding land claim, the deep significance of the action to the Gitanyow community, the potential loss of the plaintiffs or witnesses, asserted damages to the Lax'yip, and resources spent mobilizing and demobilizing for trial. [9] The defendant British Columbia opposes, and the defendant Canada takes no position, on the application for a stay of proceedings, but both government defendants consent to an adjournment of the trial. The Province, for example, submits that: The Province respectfully submits that the appropriate relief in these circumstances is an order that the trial of Stage One of this action be adjourned sine die pending the judgments of the Supreme Court of Canada in the above-noted appeals, subject to further order of this Court. Other steps can and should be taken by the parties directly to minimize the prejudice to the plaintiffs. [10] I am cognizant of the importance of this application for the Gitanyow. The plaintiffs have presented strong, indeed compelling, arguments opposing the postponement of this trial. [11] However, in considering this application and the scenario of denying an adjournment, I cannot proceed on the assumption that the Supreme Court of Canada decisions will affirm both decisions of the Court of Appeal

and not change anything relevant to the trial of this action. Instead, I must assess the plaintiffs' argument opposing the trial adjournment against the reality of the pending appeals to the Supreme Court of Canada. In deciding this application, I must confront the consequences of a possible scenario if the adjournment of the trial were denied, the 131-day trial were to proceed later this month as scheduled, but the Supreme Court of Canada then later makes a different decision than the Court of Appeal. The Supreme Court of Canada Appeals [12] In Nisga'a Joinder BCCA, the Court of Appeal dismissed an appeal from a judgment of this Court which had dismissed an application by the Nisga'a Nation to be joined as a defendant in this action, and made an order relating to statutory notice provisions under s. 20 of the federal Nisga'a Final Agreement Act, S.C. 2000, c. 7 and s. 8 of the British Columbia Nisga'a Final Agreement Act, S.B.C. 1999, c. 2: see 2024 BCSC 85, at para. 93. [13] In the TSKLH Joinder BCCA, the Court of Appeal varied this Court's order by setting aside an order permitting the TSKLH Nation to file a third party claim naming British Columbia and Canada as third parties, but affirmed this Court's decision adding the TSKLH Nation as defendant in this action: paras. 81, 114. [14] In the TSKLH Joinder BCCA decision, the Court of Appeal stated that: [112] The action will

remain the Gitanyow Nation's action, and ultimately the trial judge will only need to determine whether the Gitanyow Nation's claims are proven. The judge will quite likely not need to determine all the many issues related to the TSKLH's successorship, cultural connection, Indigenous laws and practices, and other matters relevant to establishing its own Aboriginal title and rights claims to the territory. Some of those matters will likely arise, and may require some findings, but their relevance will only be in defence of the Gitanyow Nation's claims. [15] On a Supreme Court of Canada appeal from these two British Columbia Court of Appeal decisions, it is possible that, if the appeals were allowed, the Supreme Court of Canada could add the Nisga'a Nation as a defendant to this action and order the TSKLH Nation to be permitted to file a third party notice naming British Columbia and Canada as third parties. [16] These outcomes, if they occurred, would result in a change to the pleadings in this action, in that the Nisga'a Nation as defendant would then be able to file a response to civil claim and the TSKLH Nation would file a third party notice, with Canada and British Columbia filing responses to the TSKLH Nation third party notice. [17] A change to the parties in the action and pleadings would likely have other procedural consequences: for example, additional rights of

discovery, additional document production related to the new pleadings, and rights to adduce expert evidence. [18] The Province and Canada also take the position that, if the TSKLH Nation are ordered by the Supreme Court of Canada to be able to file a third party claim, they will then be adverse in interest and should be permitted to cross-examine the TSKLH Nation witnesses at trial, and the TSKLH Nation takes the position that if the Nisga'a Nation is added as a defendant, they will be adverse in interest to the Nisga'a Nation. [19] In short, there is a possible outcome at the Supreme Court of Canada which could change the parties and issues in this action and, if so, likely have other procedural consequences. It could change in material ways how the trial would proceed and who would have the right to be there. [20] I add, however, that I am not aware of any issue raised in the Supreme Court of Canada appeals that would lead to an order dismissing the Gitanyow's Aboriginal rights and title action. [21] The defendants also argue that it is possible that the Supreme Court of Canada, in deciding these appeals, could also make a pronouncement about the law regarding Aboriginal rights and title more generally. The TSKLH Nation cite the example of Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1997 CanLII 302. The Province, in their application response at para. 28, argues,

"the Nisga'a Nation's pending appeal may have significant ramifications for the law of Aboriginal title, even if that appeal is ultimately dismissed". The Nisga'a-Gitanyow Agreement [22] On May 1, 2025, following a direction of this Court on April 28, 2025, that the plaintiffs advise the Nisga'a Nation of the TSKLH Nation's adjournment application, counsel for the Nisga'a Nation wrote to counsel for the plaintiffs. This letter is in evidence before me. The Nisga'a Nation letter states in part: As the parties are aware, the Nisga'a Nation previously made known its intention to be a full party in the action, through its application in these proceedings filed May 31, 2023. This application forms the basis of our Appeal currently before the Supreme Court of Canada. However, as you are also aware, following the dismissal of the Nisga'a Nation's application, our respective clients entered into an agreement in respect of the Nisga'a Nation's participation in "Stage One" of the trial (the "Agreement"). [23] The Nisga'a Nation letter goes on to say that "the Nisga'a Nation is of the view that it is important for the parties and the Court to be aware that the Agreement specifically contemplates our Appeal" and quotes recital E and para. 6 of this agreement: E. The Nisga'a Nation has sought leave to appeal a decision in the Malii action, Nisga'a Nation v. Malii, 2024 BCCA 313, in the

Supreme Court of Canada regarding its application to participate as a party in the Malii Action (the "Nisga'a Appeal Proceedings") and the Supreme Court of Canada has not yet decided this application; [ ] 6. This Agreement does not apply to or affect the Nisga'a's Appeal Proceedings and any rights, procedural and substantive, that flow from any decision in the Nisga'a Appeal Proceeding. In the event that the Nisga'a Nation is successful in the Nisga'a's Appeal Proceedings, this Agreement will continue in full force and effect unless and until the Nisga'a Nation is added as a party to Stage One with full party rights in which case and at which time this Agreement will terminate unless the Parties agree otherwise. [Emphasis in original.] [24] The Nisga'a Nation letter then states: As such, to the extent the Supreme Court of Canada determines that the Nisga'a Nation should have been added as a full party to the action like the Tsetsaut/Skii km Lax Ha, the Nisga'a Nation would have the opportunity to take steps necessary to fully participate as a party in accordance with any further direction or guidance provided by the Supreme Court of Canada. [Emphasis added.] [25] The plaintiffs submit that this Court should consider and give weight to the possibility that, even if successful in being added as a defendant to this action by the Supreme Court of Canada, the Nisga'a Nation may not

choose to participate in the trial as defendant. The plaintiffs submit, at para. 52 of their written submissions: "If the Nisga'a is successful in its appeal to the Supreme Court of Canada, it will then be in a position to assess whether to continue negotiations with the plaintiffs or proceed in the action as a defendant". [26] However, in a subsequent letter from the Nisga'a Nation to the Court dated May 14, 2025, handed up to me at this hearing, counsel for the Nisga'a Nation expressly disagreed with a suggestion in the plaintiffs' application response that the Nisga'a Nation was "agreeing to the Gitanyow proceeding" with the trial on May 28, 2025. The Nisga'a Nation letter states, among other things: As stated in the May 1, 2025 letter, the Nisga'a Nation has consistently made efforts to be made a full party to this action, and is currently pursuing this issue to the Supreme Court of Canada. Our client's decision not to specifically seek an adjournment does not implicitly reflect an agreement for this trial to proceed on May 28th. [27] I find it unnecessary, and I decline, to interpret this agreement between the Nisga'a Nation and the plaintiffs. [28] It is sufficient for the purposes of this application to observe that: (a) the Nisga'a Nation filed an application for leave to appeal to the Supreme Court of Canada, which leave was granted, from a decision dismissing their

application to be added as a defendant in this action; and (b) the Nisga'a Nation's position about the agreement with the plaintiffs is as expressed in the two letters I have referred to dated May 1 and May 14, 2025, including saying: "to the extent the Supreme Court of Canada determines that the Nisga'a Nation should have been added as a full party to the action like the Tsetsaut/Skii Km Lax Ha, the Nisga'a Nation would have the opportunity to take steps necessary to fully participate as a party in accordance with any further direction or guidance provided by the Supreme Court of Canada". [29] Given the evidence before me, I do not place weight for the purposes of this application on a hypothetical future scenario advanced by the plaintiffs where the Supreme Court of Canada add the Nisga'a Nation as a defendant in this action, but the Nisga'a Nation do not participate in this action. [30] When assessing this application, I find that I must proceed on the footing that, if successful on their appeal to the Supreme Court of Canada, and an order is made adding the Nisga'a Nation as a defendant, then the Nisga'a Nation would be a defendant in the action and there is a realistic scenario they would participate as such. Conversely, if the adjournment of the trial is not granted and the Supreme Court of Canada later adds the Nisga'a Nation as a defendant, the Nisga'a Nation will have

been deprived of an opportunity to participate as a defendant in the action at the trial which would have already begun. The TSKLH's Application for a Stay of Proceedings [31] The Province submits that there is doubt as to whether this Court has the power to order a stay of proceedings after a leave application has been brought and when there is a pending appeal before the Supreme Court of Canada, and whether a stay should instead be sought from the Supreme Court of Canada or the court from which the decision is appealed: LLS America LLC (Trustee of) v. Dill, 2018 BCSC 2316 at paras. 69-70, citing Saskatchewan Trust Co. (Liquidators of) v. Hawrish, 15 B.C.L.R. (3d) 192, 1995 CanLII 963 (S.C.); Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1; see also Re Stuckey, 2000 BCSC 171 at paras. 6-7; KRG Insurance Brokers (Western) Inc. v. Shafron, 2008 BCCA 411 at paras. 10-11; and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [1999] 1 S.C.R. 381 at para. 16, 1999 CanLII 712. [32] However, I need not decide any such jurisdictional question. [33] That is because assuming, without deciding, I have jurisdiction to grant a stay of proceedings in this action pending the Supreme Court of Canada appeals, I find that the TSKLH Nation has not

established that a stay of proceedings should be granted. [34] The test for adjournment differs from that of a stay: Grewal v. Mann, 2021 BCSC 1995 at para. 39. [35] I choose to apply the test for a stay set out in British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 289 at para. 5, citing RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 314-315, 1994 CanLII 117, which requires the applicant to establish: (a) That there is some merit to the appeal in the sense that there is a serious question to be determined; (b) That irreparable harm would be occasioned to the applicant if the stay was refused; and (c) That, on balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted. [36] The court's power to grant a stay is discretionary and should only be exercised where it is necessary to preserve the subject matter of the litigation to prevent irremediable damage or where there are other special circumstances. The onus lies on the applicant to establish the right to a stay: Grewal at para. 43, citing Dixon v. Morgan, 2020 BCCA 200 at para. 23. [37] The question in most cases is the relative weight of the convenience and inconvenience of the order sought, always considering the paramount measure, the interests of justice: Coburn v.

Nagra, 2001 BCCA 607 at para. 7. [38] The TSKLH Nation seek as their primary relief to stay the entire action such that everything in the action would stop pending the Supreme Court of Canada decisions. In my view, the TSKLH Nation has not demonstrated that it would suffer irreparable harm if all steps in the action did not temporarily cease until the Supreme Court of Canada has rendered its decisions. I find that the balance of convenience is against granting a stay of proceedings pending the Supreme Court of Canada appeal decisions. [39] I also find it is not in the interests of justice to order a stay of the entire proceeding. Further, considering the factors in Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia (Education), 2013 BCSC 751 [Conseil Scolaire], I find that considerations of "fairness and prejudice" and "the balance of convenience" weigh against granting a temporary stay of proceedings: para. 32(f). [40] Whether there should nevertheless be an adjournment of the trial is the issue to which I now turn. Law re Adjournment Application when there is a Pending Appeal [41] I have considered the principles in Navarro v. Doig River First Nation, 2015 BCSC 2173, with respect to adjournments, including the factors set out in para. 20 of that decision. [42] On such an application, the overall interests of justice must prevail at the end of the day and the court must consider whether granting the request will promote a decision on the merits: Navarro at para.

19. Given the context of this case, an Aboriginal rights and title action, I find that other considerations should also apply, which I return to below: Restoule v. Canada (Attorney General), 2022 ONSC 7368. [43] When an adjournment is sought pending an appeal, further considerations arise. In Atlas Construction Inc. v. Brownstones, 46 C.P.C. (3d) 67, [1996] O.J. No. 703 [Atlas], the Court considered an application for adjournment of a trial where there was a pending appeal of an order denying leave to amend a statement of defence and add a counterclaim. At para. 5, the Court quoted Esquimalt & Nanaimo Railway Company v. Dunlop, [1918] 3 W.W.R. 828 at 829, 1918 CanLII 619 (B.C.C.A.) [Esquimalt] which states that: when an action is pending, and, some question arises which may affect the course of the trial, and which is the subject of appeal to this Court, that the trial ought to be, in general--unless there are very special reasons otherwise--stayed until the Court of Appeal has dealt with the question which may have some considerable influence upon the course of the trial. [44] However, in my view, the Esquimalt case does not create a rigid general rule that a trial must be adjourned where there is a pending appeal that could affect the course of the trial unless there are very special reasons otherwise: Restoule at paras. 9-11. Instead, considerations of the pending appeal

must be taken into account as part of the Navarro factors when considering an adjournment application and I do so. Discussion - Adjournment Application The Expeditious and Speedy Resolution of Matters on their Merits [45] In my view, this factor militates against an adjournment of the trial. The Reasonableness of the Request and the Grounds or Explanation for the Adjournment [46] The request for an adjournment at this time is reasonable. [47] The Supreme Court of Canada has decided to hear two appeals of interlocutory decisions which I have described in these Reasons. The Timeliness of the Request [48] The request for an adjournment of the trial is timely. The application was brought shortly after the April 24, 2025, decisions of the Supreme Court of Canada granting leave to appeal. The Potential Prejudice to each Party Prejudice to the Plaintiffs [49] There would be prejudice to the Gitanyow from an adjournment of the trial. [50] Counsel for the Gitanyow in their submissions, and Sk'a'nism Tsa 'Win'Giit, also known as Joel Starlund, a Gitanyow Chief of the Wilp Wii'litsxw, in his affidavit, spoke eloquently on behalf of the Gitanyow about the prejudice to the Gitanyow if this trial were adjourned. In his affidavit, Joel Starlund deposes: (a) "The current title claim was originated by Writ of Summons on December 10, 2003, and has been in active litigation since 2014 when a

Notice of Intention to Proceed was served and filed" (para. 4); (b) " repeated delays have been very hard on the Simgigyet and the Gitanyow community at large. Many Gitanyow and in particular the Plaintiffs who are responsible to their Wilp members have expressed their frustration to me, and they do not understand why our attempts to have our case heard have been repeatedly prevented. Each time the trial is adjourned, the frustration grows" (para. 8); (c) "Since the Gitanyow's land claim began, we have lost many of our chiefs and elders " (para. 14); (d) "Today, several key members of the Simgigyet'm and Gitanyow witnesses are of advanced age and/or in poor and declining health" (para. 15); (e) "In anticipation of each of the previously scheduled trial dates, the Plaintiffs have incurred significant costs" (para. 23); and (f) "Any further adjournment or stay will cause the Simgigyet'm to incur additional costs as a result of the resulting delay" (para. 28). [51] The plaintiffs submit they are ready to proceed to trial now. They submit there have already been three adjournments (from October 1, 2024, to March 5, 2025; from March 5, 2025, to May 5, 2025; and the adjournment to May 28, 2025, to hear this application). [52] However, depositions are an available procedural mechanism in appropriate circumstances to preserve evidence before trial of witnesses who are in ill health:

Supreme Court Civil Rules, R. 7-8. [53] Further, and respectfully, I am not able to assess the Gitanyow's claims to past and future anticipated damage to their asserted territory on this application in such a way as to deny an adjournment of the trial. [54] However, I do nevertheless find that there would be prejudice to the plaintiffs from the adjournment of the trial and not getting started with Stage 1 of their Aboriginal title action. Other Considerations Regarding Prejudice [55] Without minimizing the prejudice to the plaintiffs should the adjournment be granted, I must also consider the risks of proceeding to trial while an appeal in pending: Restoule at para. 20(1). [56] I am unable to accept the Gitanyow's submission that, "[t]here is no prejudice to the TSKLH by proceeding with the trial as scheduled". And, while the plaintiffs submit that, "[t]he Gitanyow alone suffer prejudice if the trial is adjourned" (plaintiffs written submissions at para. 28), theirs is not the only prejudice that is to be considered on this application. [57] If the trial were to go ahead and either appeal was allowed such that the Supreme Court of Canada ordered that the Nisga'a Nation be added as a new defendant and/or that the TSKLH Nation could file a third party claim, there would be likely prejudice to the defendants. [58] Should the trial go ahead and the appeal from the TSKLH Joinder

BCCA be allowed, the TSKLH Nation would have proceeded to trial in this action without their filed third party claim nor the government defendants' responses to that claim. [59] I cannot assume that a decision to allow the TSKLH Nation to file a third party claim would make no difference to the trial if it proceeded now on the current pleadings. If there is an order that the TSKLH Nation is permitted to file a third party claim after the trial begins, the pleadings which define the issues in this action would change. Witnesses called and cross-examined at trial would likely need to be recalled. If there were new pleadings required following a Supreme Court of Canada decision, this would likely mean additional document disclosure and discovery which would not have occurred before the trial had commenced. If the trial goes ahead and the TSKLH Nation is later permitted to file a third party claim, the trial would likely have to be bifurcated with a portion held prior to the Supreme Court of Canada making its decision and a portion afterwards. [60] Further, if the Nisga'a Nation were added as a defendant by the Supreme Court of Canada, proceeding with the trial without them would not simply constitute prejudice to the Nisga'a Nation's procedural rights -- which I pause to note was not directly asserted by the Nisga'a Nation, who did not appear at this hearing -- but to the trial

process. If the Nisga'a Nation were added as a defendant in this action, that would affect not just the Nisga'a Nation's procedural rights but would likely impact other parties to the actions as well. [61] It would not be in the interests of the administration of justice to commence and conduct a 131-day Stage 1 trial on Aboriginal title only to later have to redo the trial or substantial portions of it following a decision of the Supreme Court of Canada on appeal that could alter the issues and/or parties to the action. The Right to a Fair Trial and the Proper Administration of Justice [62] Considerations of prejudice in the event the trial is started now despite the pending appeals is closely related to these considerations. [63] On an adjournment application, securing a fair trial on the merits of the action is the ultimate goal: Navarro at para. 21. [64] The Supreme Court of Canada appeal could subsequently potentially redefine material components of this action at the trial, if it went ahead now before those Supreme Court of Canada decisions are made. With the Supreme Court of Canada appeal yet to be heard, material components of this action are currently uncertain. Proceeding to trial now, despite the uncertain outcome of the Supreme Court of Canada appeals, would tend to detract from the proper administration of justice. The History of the Matter including Deliberate

Delay or Misuse of the Court Process [65] The plaintiffs contend that the TSKLH Nation has delayed. However, the basis for the present adjournment is not due to any lack of readiness of the TSKLH Nation to go to trial on the action now framed. It is because of the risk that the Supreme Court of Canada decision could change in material ways the parties and issues in this action. [66] Under this factor, I also consider the Gitanyow's submission that it is "not in the interests of justice to delay the trial to accommodate the TSKLH's weak claim". [67] The Gitanyow submit that "this 132-day trial that has been decades in the making should not be adjourned to allow for the possibility that the TSKLH will be permitted to advance its baseless claim as part of the Gitanyow's title action". In this regard, Gitanyow invited me to review some of the discovery and other evidence and expert reports and assess the strength of the TSKLH Nation's Aboriginal title claim. [68] I am not able to, and I decline to, assess and consider the strength of the TSKLH Nation's claim to Aboriginal title or rights on the evidentiary record before me on this adjournment application. It is not a factor which militates either way on this adjournment application. The Plaintiffs' Road Map of the Conduct of the Trial if there were No Adjournment [69] At the hearing, the plaintiffs presented a road map for a trial

that would start May 28, 2025, despite the pending Supreme Court of Canada appeals. The plaintiffs' proposed trial plan would involve, per para. 42 of those submissions: Starting May 28, 2025, the parties [would] proceed to stage one of the trial with TSKLH participating as a defendant. This will involve hearing evidence regarding the Gitanyow's title claim. [70] In this phase of trial, "[t]he plaintiffs [would] not object to any cross-examination question on the ground that it relates to the third party claim, not otherwise relevant to TSKLH's defence". The plaintiffs note, "this part of the trial is scheduled to conclude in February 2026". [71] The Gitanyow further submit on their proposed trial plan that: The trial [would] resume without delay upon the release of the SCC decisions and proceed according to one of the following scenarios, depending on the SCC's dispositions on the appeals: 1. If the SCC does not grant the TSKLH's or the Nisga'a's appeals: the parties will present their closing submissions; 2. If the SCC grants leave to the TSKLH to bring its third party claim: the TSKLH will present its case as a third party plaintiff followed by B.C. and Canada's defences; 3. If the SCC orders that the Nisga'a be added as a defendant: the Nisga'a will participate in the action on [a] proactive (as opposed to retroactive) basis and will be bound by all preceding steps taken by

the parties and all court orders to date. [Emphasis in original.] [72] The Gitanyow submits on its trial plan, at paras. 53 and 81: In the event that the Nisga'a decides to be added as a defendant and the Nisga'a have additional evidence to adduce after it is joined as a party, it can proceed to adduce this evidence when the court resumes in advance of final arguments. [ ] [Nisga'a] will, however, forego rights to cross-examination of witnesses who have already testified. [But] this is comparatively minor prejudice [73] I have considered the plaintiffs' proposed trial road map and the plaintiffs' related submission that "all parties and this court have an obligation to figure out a way not to delay the trial": plaintiffs written submissions at para. 40. [74] However, there are significant concerns with the proposed road map, which does not address the prejudice and risk to the proper administration of justice in the event the trial were to start, including: (a) The plaintiffs' trial plan contemplates that the cross-examination of the plaintiffs' witnesses would take place regarding the TSKLH Nation's third party claim, but there is currently no such filed third party claim and no third party pleadings which are operative in this action, including filed responses to the third party notice, to relate to such a claim. (b) It contemplates if the trial commenced without the Nisga'a

Nation and if the Nisga'a Nation is subsequently made a defendant by order of the Supreme Court of Canada, the Nisga'a Nation could participate prospectively but will have lost the opportunity, which the Supreme Court of Canada's order granting them defendant status would have entitled them to participate in that part of the trial which had previously occurred. (c) It contemplates that the Nisga'a Nation do trial preparation, including documentary disclosure and expert reports, on the assumption that it is a defendant in this action before the Supreme Court of Canada has given its decision. [75] I do not find that this trial plan addresses the prejudice to proceeding to a trial at this time before the Supreme Court of Canada has decided the issues on appeal. Other Relevant Factors in This Context [76] Restoule provides commentary about factors to be considered in this context, one of which is "Reconciliation and s. 35 of the Constitution Act, 1982": paras. 20(10), 80-83. [77] The plaintiffs further rely on the following passage from that case, which they contend applies here to the Gitanyow, in which the Court there said: [34] An adjournment denies the plaintiffs and the public a determination on the merits and prolongs the continuing damage to the Crown Anishinaabe relationship. [78] In my view, the court should also consider the objectives of proportionality, access to

justice, and reconciliation in the context of Aboriginal title and rights claims: see Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 at para. 36. [79] In my view, these considerations militate strongly against adjourning the trial of this action. Conclusion - Application for Adjournment of the Trial [80] The plaintiffs have demonstrated strong, indeed compelling, arguments to not adjourn this trial. I accept that the Gitanyow will suffer prejudice if the trial is adjourned. There is also a strong public interest in the objective of reconciliation that weighs strongly in their favour: Restoule at para. 81. [81] However, as stated earlier, considerations of prejudice to the Gitanyow is not the only consideration with respect to prejudice. [82] There are also compelling reasons to adjourn this trial in light of the recent decision by the Supreme Court of Canada to hear these appeals which has the potential to alter the parties, pleadings and issues in this action. [83] The nature of the issues before the Supreme Court of Canada -- namely, who are the proper parties and whether a third party claim can be brought -- creates risk to proceeding with a trial which later may be found to have proceeded on an incorrect basis and may therefore need to be relitigated. [84] Securing a fair trial on the merits of this action is the ultimate goal: Navarro at para.

21. Given the outstanding appeals, there exists doubt that a trial that starts now would be conducted with what the Supreme Court of Canada later concludes should be all the necessary parties and all the necessary issues in the action. If the trial started now, and if the Supreme Court of Canada ultimately comes to a different conclusion than the courts below, this could result in great inefficiency and is not in the interests of justice. [85] Looking at all these factors, despite the compelling submissions of the Gitanyow, I find that the trial should be adjourned pending the outcome of the Supreme Court of Canada decisions, subject to any further order of the court. [86] I do not find Conseil Scolaire, relied on by the plaintiffs, to be on point. That case did not deal with an adjournment application where there was an outstanding appeal of interlocutory orders of the sort in this case. [87] Instead, this case is more like the Atlas case where a pending appeal concerning amendments which were the "cornerstone" of one of the parties' defences formed part of the reasons which justified an adjournment of the trial sine die to permit the hearing of the pending appeal: paras. 23, 26. [88] In all the circumstances, I find that the trial should be adjourned pending the Supreme Court of Canada's two appeals. I make this order subject to any further order of the court. Conditions of

the Adjournment [89] I have the discretion to impose terms and conditions when making an order adjourning the trial: R. 13-1(19). The TSKLH Nation's Proposed Conditions of the Adjournment [90] The TSKLH Nation sought the following conditions: "further steps [in this action] should only be taken with the consent of the parties or with leave of the Court, which can be done through continued case management": TSKLH Nation written submission at para. 2. [91] This condition would effectively result in a default position of a stay of the action, with the plaintiff requiring leave of the court if the parties did not agree with the taking of any step in the proceeding. [92] I decline to grant this condition sought by the TSKLH Nation for similar reasons that I have denied a stay of proceedings (which should be read together with my Reasons here). Nor am I persuaded I should stay all steps in this action and then, through case management, determine what specific steps the parties may take. [93] I am not persuaded that proceeding with pretrial steps in this action as now pleaded with the current parties creates a prejudice to the TSKLH Nation meriting such a condition nor, in my view, would it be consonant with the objective of reconciliation relevant to this adjournment application, which militates towards having this action as ready as possible to move towards trial once the Supreme

Court of Canada has given its decisions. [94] I find it difficult to see how any further pretrial steps would be wasted. And, if there is a theoretical risk that some procedural step may turn out to be not required by a decision of the Supreme Court of Canada, which is not obvious to me, it is a risk outweighed by the countervailing objective of keeping this Aboriginal title action on track for a trial of the Gitanyow's action. [95] The taking of further pretrial steps will attempt to mitigate the risk that, after the Supreme Court of Canada decision, one of the current defendants contends that it requires significant additional time before any new trial date in order to complete pretrial steps that could have been done while the Supreme Court of Canada decision was pending. [96] I regard the taking of pretrial steps to be qualitatively different when assessing prejudice than commencing a trial of this action while the Supreme Court of Canada decisions on appeal are pending. [97] The TSKLH Nation also argued that there are certain applications which should not be brought in this action pending the Supreme Court of Canada decisions. I see no basis to preclude interlocutory applications in this action generally. Should any party consider that any particular application should not be decided pending the Supreme Court of Canada decisions for some particular reason, they may raise

that for the court's consideration at the time of the hearing of such an application. The Plaintiffs' Proposed Conditions of the Adjournment [98] The plaintiffs submit that the court ought to order conditions to address prejudice from an adjournment including the following, which I deal with below. Current Pretrial Deadlines [99] The plaintiffs submit at paragraph 83 of their submissions: (a) All current deadlines must be honoured, in particular: i. TSKLH's will-say statements must be delivered. ii. TSKLH's outstanding responses arising from the examinations for discovery must be delivered forthwith. [100] I have declined to stay this action and so no condition is necessary in this regard. [101] Nothing in these Reasons changes any current court-ordered deadline for will say statements. [102] If any further pretrial deadlines need to be spoken to, the parties can request a case planning conference before me to do so. Deposition Evidence [103] The plaintiffs also request the conditions: The plaintiffs must be granted leave to preserve the evidence of witnesses set out at paragraph 15 of the Starlund Affidavit #3 by deposition, without further application to the Court. [ ] Costs of deposition that may be required as a result of the adjournment should be borne by the Defendants. [104] I am unable to assess the request for depositions of all of the witnesses in para. 15 of the

Starlund affidavit on this application so as to grant as a condition an order for depositions of all these witnesses. Similarly, I do not grant an order for costs in advance of depositions yet to be taken. [105] However, if the parties are not able to agree on the deposition of a witness or costs associated with that, the plaintiffs are at liberty to apply on five days' notice for an order for a deposition of a witness or witnesses. Procedural Steps -TSKLH's Third Party Claim [106] The plaintiffs seek a condition that: The TSKLH and the Crown parties must expeditiously move forward with the procedural steps in the TSKLH's claim so that there are no further delays if added as a third party. [107] I decline to order, as a condition of this adjournment, that steps be taken in the TSKLH Nation's separate action or in respect of an unfiled third party claim. Costs Thrown Away/Costs of this Application [108] The plaintiffs seek as a condition of the adjournment costs thrown away of $150,000. They submit that: The TSKLH and Crown Defendants must pay the Plaintiffs cost thrown away as a result of the adjournment. We seek a payment of $150,000 as a fair contribution to costs thrown away by the Gitanyow which is only a fraction of the actual costs. [109] The TSKLH Nation, for their part, in their notice of application sought costs of this application from the plaintiffs. [110] I am not

prepared to order that the defendants pay costs of $150,000 as a condition of the adjournment of this trial in my order made today. [111] However, I am of the view that costs of this application, including the plaintiffs' request for costs thrown away from the adjournment, should be considered after the Supreme Court of Canada decides the appeals. This appears to have been the manner in which costs of a trial adjournment was dealt with in the Atlas case at para. 27. [112] Leaving this matter of costs relating to this application outstanding does not affect my decision on this application that the trial should be adjourned. Conclusion and Order [113] This Court has heard, and acknowledges, the deep frustration and feeling of deep disappointment and discouragement that is felt by the plaintiffs and members of their communities from not being able to start this trial later this month. It is not my intention to trivialize the hardship they feel. [114] However, in my view, in light of the pending appeals which may affect the parties, pleadings, and issues in this action, Stage 1 of the trial should not proceed until the Supreme Court of Canada has spoken. [115] I grant the following orders: 1. The application for a stay of proceedings pending the decisions of the Supreme Court of Canada at para. 1 of the notice of application, is dismissed.

2. The trial of this action, currently scheduled to commence on May 28, 2025, shall be adjourned generally, pending the decisions of the Supreme Court of Canada on appeal of the Court of Appeal's decisions dated August 29, 2024 (CA49617), and December 5, 2024 (CA50083), subject to any further order of this Court.

3. The parties are at liberty to request a case management conference or case planning conference before me in this action.

4. The plaintiffs are at liberty to apply on five days' notice for an order for a deposition of a witness. [116] As to costs, I order: 5. Costs of this application may be spoken to after the Supreme Court of Canada makes a decision on the appeals, subject to any further order of this Court. "Stephens J."