Nisg̱a’a Nation v. Malii

2024 BCCA 313 Nisg̱a'a Nation v. Malii

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nisg̱a'a Nation v. Malii, 2024 BCCA 313 Date: 20240829 Docket: CA49617 Between: Nisg̱a'a Nation, as represented by the Nisg̱a'a Lisims Government Appellant (Applicant) And 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 Respondents (Plaintiffs) And His Majesty the King in Right of the Province of British Columbia and the Attorney General of Canada Respondents (Defendants) And Delgamuukw also known as George Muldoe, Baskyelaxha/Niist also known as Bill Blackwater Sr., Djogaslee also known as Ted Mowatt, Luus also known as Roy Wilson, Xhliiyemlaxha also known as John Olson, Gyolugyet also known as Bridie O'Brien, and Wii Minosik also known as Larry Skulsh Interveners Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Abrioux The Honourable Justice Skolrood On appeal from: An order of the Supreme Court of British Columbia, dated January 17, 2024 (Malii v. British Columbia, 2024

BCSC 85, Vancouver Registry Docket S036687). Counsel for the Appellant Nisg̱a'a Nation, as represented by the Nisga'a Lisims Government: J.R. Aldridge, K.C. A.H. Sabur M. Clark Counsel for the Respondents, 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: P.R.A. Grant, K.C. M.G. Underhill, K.C. J. Riddle A. MacMillan Counsel for the Respondent, His Majesty the King in Right of the Province of British Columbia: K.B. Bergner M.E. Casey Counsel for the Respondent, Attorney General of Canada: A.M.L. Harvey A.G. Dewitt Counsel for the Interveners, Delgamuukw also known as George Muldoe, Baskyelaxha/Niist also known as Bill Blackwater Sr., Djogaslee also known as Ted Mowatt, Luus also known as Roy Wilson, Xhliiyemlaxha also known as John Olson, Gyolugyet also known as Bridie O'Brien, and Wii Minosik also known as Larry Skulsh: D.R. Paterson Place and Date of Hearing: Vancouver, British Columbia June 19 & 20, 2024 Place and Date of

Judgment: Vancouver, British Columbia August 29, 2024 Written Reasons by: The Honourable Mr. Justice Abrioux Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Skolrood Summary: The Nisg̱a'a Nation appeals from an order dismissing its application to be added as a defendant to an action in which the Gitanyow Nation seek a declaration of Aboriginal rights and title to an area of land that overlaps with the Nisg̱a'a treaty lands. The case management judge dismissed the application, finding that at the time of the hearing of the application, the Nisg̱a'a had not shown that its treaty or statutory rights were engaged to justify adding it as a party. Given the issues for trial might still be in flux, the judge directed a judicial management conference occur 60 days before the trial to address whether the Nisg̱a'a needs to be served with statutory notice as per the party-conferring provisions in the provincial and federal Nisg̱a'a Final Agreement Acts. Held: Appeal dismissed. The judge was correct in concluding that at the time of the application, the Nisg̱a'a had not established a statutory or treaty entitlement to be added as of right to the Gitanyow action. There was also no reviewable error in the exercise of his discretion in finding that the Nisg̱a'a should not be added as a party under R. 6-2(7) of the Supreme Court Civil Rules. Lastly, it was not

an error for the judge to direct a judicial management conference as set out in the order. This was part of the exercise of his discretion in his role as the case management judge of a complex action. Reasons for Judgment of the Honourable Mr. Justice Abrioux: Introduction [1] This is an appeal from an order dismissing the application of the Nisg̱a'a Nation to be added as a defendant to an action. The appeal engages a consideration of how the Nisg̱a'a Treaty, the Nisg̱a'a Final Agreement Act, S.B.C. 1999, c. 2, s. 8(1) [BC NFA Act], and the federal Nisg̱a'a Final Agreement Act, S.C. 2000, c. 7, s. 20(1) [NFA Act] apply where the Nisg̱a'a seeks to be added as a party to an action. [2] In the underlying action, the Gitanyow Nation seeks 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 (the "Claim Area"). The action has been under case management since 2022. It was scheduled for an 84-day trial to commence on October 1, 2024. In June 2024, the case management judge adjourned the trial to March 3, 2025 (reasons indexed as 2024 BCSC 1062). [3] The Gitanyow claims that it has occupied its ancestral territory in northwestern British Columbia, known as the Lax'yip, since time immemorial and it has continued to occupy, control, use and maintain its

connection to the Lax'yip pursuant to Gitanyow Ayookxw (the legal system of the Gitanyow). [4] Effective May 11, 2000, the Nisg̱a'a Nation, as represented by the Nisg̱a'a Lisims Government (the "Nisg̱a'a") entered into the Nisg̱a'a Final Agreement with Canada and British Columbia (referred to as the "Nisg̱a'a Treaty"). The Nisg̱a'a Treaty, among other things, grants the Nisg̱a'a certain rights over, as well as fee simple title to, geographic areas that overlap, in part, with the geographic area of the Gitanyow's claim. The Preamble to the Nisg̱a'a Treaty recognizes that "the Nisg̱a'a Nation has lived in the Nass Area since time immemorial". [5] Due to the overlap between the Nisg̱a'a's treaty lands, the Claim Area, and provisions of the Nisg̱a'a Treaty, the Nisg̱a'a applied to be added as a defendant to the Gitanyow action. The Nisg̱a'a also said that it has relevant evidence to provide at trial regarding its historical occupation of its traditional territory. If made a defendant, the Nisg̱a'a would be entitled to file a response to civil claim and participate fully in both the pre-trial procedure and the trial of this action on all issues, including closing argument. [6] The Nisg̱a'a's position at the hearing of the application was that: 1) it had a right to be added as a defendant because it holds statutory and treaty entitlements to appear as a party; and 2) it ought to be

added as a party under Rules 6-2(7)(b)(i), (b)(ii), and (c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. [7] In reasons for judgment indexed as 2024 BCSC 85 ("RFJ"), the judge dismissed the Nisg̱a'a's application on the basis that it had not established at the time of the hearing that its treaty or statutory rights were engaged. Furthermore, it was not necessary nor just or convenient for the Nisg̱a'a to be added as a party under the Rules. [8] In this court, the Nisg̱a'a's first argument is that it has a statutory or treaty entitlement to be added as of right as a party to the action. Second, it says the judge erred in not adding it as a party under Rule 6-2(7)(b) and(c) of the Rules. It also argues that the judge erred in the exercise of his case management responsibilities by directing the subsequent hearing. [9] For the reasons that follow, I would dismiss the appeal. In my view, the judge was correct in concluding that, as at the time of the hearing of the application, the Nisg̱a'a had not established a statutory or treaty entitlement to be added as of right to the Gitanyow action. Nor did he err in deciding that the Nisg̱a'a should not be added as a party under the Rules or in the exercise of his trial management functions by directing a further case management conference as set out in the order under appeal. Background [10] The Gitanyow's Aboriginal rights and

title action first commenced in December 2003 and was reactivated in 2016. The claim itself has been amended several times, but from the outset, the Gitanyow sought a declaration of Aboriginal rights and title. [11] Up until the third amended notice of civil claim, filed May 19, 2023, the Gitanyow sought a declaration that recognized their "existing aboriginal title and rights in and to the Gitanyow Lax'yip which are existing aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982". [12] At the hearing below, the Gitanyow provided an unfiled copy of the Fourth Further Amended Notice of Civil Claim (referred to in the reasons as the "Fourth FANOCC"). Both defendants consented to the Gitanyow filing this amended version. As such, the case management judge relied on the Fourth FANOCC as relevant to determining the Nisg̱a'a's application. The Fourth FANOCC reframed the declaration sought, but the declaratory relief still referred to "the entirety of the Gitanyow Lax'yip". The pleadings also removed substantial parts of the claim seeking declarations to ratify conditionally or to refuse ratifying fee simple titles, tenures or any other rights or interests related to the Gitanyow Lax'yip. The Gitanyow also removed the declaratory relief it sought for trespass, wrongful interference with its Aboriginal rights and title, nuisance, and breach of fiduciary duty. Last,

the Gitanyow removed the interlocutory and permanent injunctive relief sought to prevent further or new interference with its Aboriginal rights and title: RFJ at paras. 16-20. [13] As part of its application, the Nisg̱a'a relied significantly on the Nisg̱a'a Treaty, which provided that certain lands were designated as Nisg̱a'a Lands, owned by the Nisg̱a'a nation in fee simple. As mentioned, there is a modest overlap between the Claim Area and the Nisg̱a'a Treaty lands where the Nisg̱a'a hold fee simple title. There is more of an overlap with the Nass Wildlife Area and Nass Area under the Nisg̱a'a Treaty: RFJ at paras. 21-23. [14] Sections 33 and 34 of the General Provisions (Chapter 2) of the Nisg̱a'a Treaty provide a framework for situations in which another Indigenous group establishes s. 35 rights that conflict with the Nisg̱a'a Treaty rights. [15] Articles 41 and 42 of the Dispute Resolution (Chapter 19) of the Nisg̱a'a Treaty (referred to as "ss. 41 and 42") also address the Nisg̱a'a's right to be a party in judicial and administrative proceedings where issues are raised by the parties to the proceedings that implicate "the interpretation or validity" of the Nisg̱a'a Treaty or "the validity, or applicability" of any settlement legislation or any Nisg̱a'a law: 41. If, in any judicial or administrative proceeding, an issue arises in respect of: a. the interpretation or validity of this Agreement; or b. the validity, or applicability of: i. any settlement legislation, or ii. any Nisg̱a'a law the issue will not be decided until the party raising the issue has properly served notice on the Attorney General of British Columbia, the Attorney General of Canada, and Nisg̱a'a Lisims Government.

42. In any judicial or administrative proceeding to which paragraph 41 applies, the Attorney General of British Columbia, the Attorney General of Canada, and Nisg̱a'a Lisims Government may appear and participate in the proceedings as parties with the same rights as any other party. [16] Similarly, the BC NFA Act and the federal NFA Act provide notice requirements where an issue regarding "the interpretation or validity of the Nisg̱a'a Final Agreement" or "the validity or applicability of any settlement legislation or any Nisg̱a'a law" is raised. Section 8 of the BC NFA Act provides: 8 (1) If, in any judicial or administrative proceeding, an issue arises in respect of (a) the interpretation or validity of the Nisg̱a'a Final Agreement, or (b) the validity or applicability of any settlement legislation or any Nisg̱a'a law the issue must not be decided until the party to the proceeding raising the issue has properly served notice on the Attorney General of British Columbia, the Attorney General of Canada and the Nisg̱a'a Lisims Government. (2) The notice required under subsection (1) must (a) describe the judicial or administrative proceeding in which the issue arises, (b) state whether the issue arises in respect of the matters referred to in subsection (1) (a) or (b) or both, (c) state the day on which the issue is to be argued, (d) give particulars necessary to show the point to

be argued, and (e) be served at least 14 days before the day of argument unless the court or tribunal authorizes a shorter notice. (3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of British Columbia, the Attorney General of Canada and the Nisg̱a'a Lisims Government may appear and participate in the proceeding as parties with the same rights as any other party to the proceeding. (4) The Judicial Review Procedure Act applies to an application for judicial review under the following provisions of the Nisg̱a'a Final Agreement as if the decision under review were made pursuant to a statutory power of decision as defined in that Act: (a) paragraph 17 of the Nisg̱a'a Government Chapter; (b) paragraph 26 of the Eligibility and Enrolment Chapter. [Emphasis added.] [17] Section 20 of the federal NFA Act mirrors this language and provides a similar framework: Notice of issues arising 20 (1) If, in any judicial or administrative proceeding, an issue arises in respect of (a) the interpretation or validity of the Nisga'a Final Agreement, or (b) the validity or applicability of any settlement legislation or any Nisga'a law, the issue shall not be decided until the party raising the issue has properly served notice on the Attorney General of Canada, the Attorney General of British Columbia and the Nisga'a Lisims Government. Content of

notice (2) The notice required under subsection (1) must (a) describe the judicial or administrative proceeding in which the issue arises; (b) state whether the issue arises in respect of the matters referred to in paragraph (1)(a) or (b) or both; (c) state the day on which the issue is to be argued; (d) give particulars necessary to show the point to be argued; and (e) be served at least fourteen days before the day of argument, unless the court or tribunal authorizes a shorter period. Participation in proceedings (3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of Canada, the Attorney General of British Columbia and the Nisga'a Lisims Government may appear and participate in the proceeding as parties with the same rights as any other party. Saving (4) For greater certainty, subsections (2) and (3) do not require that an oral hearing be held where one is not otherwise required. [Emphasis added.] [18] The judge recognized that both the BC NFA Act and federal NFA Act give the Nisg̱a'a, specifically the Nisg̱a'a Lisims Government, a statutory right to participate as a party in any judicial proceeding where an issue regarding "the interpretation or validity of the Nisg̱a'a Final Agreement" or "the validity or applicability of any settlement legislation or any Nisg̱a'a law" is raised. He found that based on the current version

of the pleadings in the Fourth FANOCC, he could see no issue being raised by the Gitanyow about the validity of the Nisg̱a'a Treaty or the interpretation or application of settlement legislation or Nisg̱a'a law: RFJ at paras. 11-12. [19] However, the judge recognized that the current pleadings from Canada and British Columbia "could potentially raise an issue" about the interpretation of the Nisg̱a'a Treaty, which would then entitle the Nisg̱a'a to be heard as a party on the discrete issues raised. He also noted that it was possible for there to be further amendments to the pleadings and that the issues for the trial "may still be in flux": RFJ at para. 12. [20] Accordingly, the judge dismissed the application "at this time", but directed that a hearing take place no less than 60 days before the trial to determine whether statutory notice should be sent to the Nisg̱a'a on the issues as pleaded and the case as framed at that time. That hearing would also determine the scope, if any, of the Nisg̱a'a's right to participate as a party at the closing arguments at trial: RFJ at para. 13. [21] On May 16, 2024, the Northern Gitxsan Hereditary Chiefs representing seven Gitxsan huwilp (houses) (the "Northern Gitxsan"), were granted leave to intervene in the appeal on a public interest basis (Nisga'a Nation v. Malii, 2024 BCCA 206). Their position is that the appeal should be dismissed

because nothing in the Gitanyow action affects the Nisg̱a'a in such a way as to require its participation as a party. They say the preferred method for reconciliation of interests is negotiations and that joining the Nisg̱a'a to the action would be an impediment to such negotiations. [22] British Columbia and Canada took no position at the hearing of the Nisg̱a'a's application, despite being provided with the opportunity to make substantive submissions. On appeal, however, both adopted a proactive position, filed factums, and argued that the appeal should be allowed. British Columbia focussed its submissions on the exclusivity of Aboriginal title and the importance of participation in Aboriginal title litigation. Both British Columbia and Canada also challenged the judge's finding that the Crown defendants could lead the Nisga'a evidence at the trial. On Appeal [23] I would frame the issues on appeal as being whether the judge erred: a) by failing to interpret or apply ss. 41 and 42 of the Nisg̱a'a Treaty properly and instead finding that the Nisg̱a'a were not entitled to participate in the action as a party with the same rights as any other party; b) in declining to follow the precedent in Cowichan Tribes v. Canada (Attorney General) as a basis for adding the Nisg̱a'a as a party under the Rules; c) in failing to exercise his discretion properly under Rules 6-2(7)(b)(i),

(b)(ii), and (c) of the Rules; and, d) in exercising his case management responsibilities by directing a subsequent hearing. Issue 1: Did the judge err in the interpretation and application of ss. 41 and 42 of the Nisg̱a'a Treaty and finding the Nisg̱a'a were not entitled to participate in the action as a party? Reasons for Judgment [24] At the application below, the Nisg̱a'a relied on s. 41 of the Nisg̱a'a Treaty to assert its participatory procedural right. The judge observed that s. 20 of the federal NFA Act and s. 8 of the BC NFA Act also speak directly and in specific terms about the Nisg̱a'a's participatory rights in other proceedings. He preferred to focus on these two provisions in the implementing legislation, describing them as "Party-Conferring Provisions", rather than focusing on s. 41 of the Nisg̱a'a Treaty. The judge noted that because the two provisions arise from a modern treaty, it should be interpreted in a generous manner: at para. 73. [25] The judge decided that the Nisg̱a'a did not have a statutory or treaty right to be added as a defendant "at this time". He reached this conclusion, among other reasons, on the basis that the Nisg̱a'a Treaty granted the Nisg̱a'a the right to participate as a party in litigation on certain issues, but not to participate at large. In that respect, he found that the Nisg̱a'a may only participate as a party if a context arises

where the interpretation or validity of the Nisg̱a'a Final Agreement or the validity or applicability of any settlement legislation or any Nisg̱a'a law is in issue. Further, the Party-Conferring Provisions provide for relatively short notice (at least 14 days) and the notice must be tailored to the issue or point of interpretation, validity, or applicability that would trigger the statutory entitlement to participate. Those provisions also indicate that the Nisg̱a'a would become a party only after it had been properly served with the statutory notice. In the judge's view, the provisions did not have the statutory effect of deeming the Nisg̱a'a as a defendant to an action from the outset on the basis of the pleadings; rather, the Nisg̱a'a had the right to be a party only for the purpose of participating in the argument about specific issues: at paras. 77-80. [26] Accordingly, the judge determined that the Party-Conferring Provisions were not engaged because the Gitanyow did not directly raise any issues in the Fourth FANOCC about the interpretation or validity of the Nisg̱a'a Treaty or about the validity or applicability of any Nisg̱a'a laws: at paras. 85-86. He added, however, that it was premature at this time to find whether the current pleadings of Canada's and British Columbia's were engaged based on the references to the Nisg̱a'a Treaty in their respective responses to

civil claim. Discussion [27] The standard of review that applies to the judge's interpretation of the applicable provisions in the Nisg̱a'a Treaty is correctness, with deference to the text. [28] Recently, in Ontario (Attorney General) v. Restoule, 2024 SCC 27, Justice Jamal reviewed the standard of appellate review that applies to historical Crown-Indigenous treaties, concluding that the applicable standard is correctness: at para.

87. In doing so, he commented on the differences between historic and modern treaties: [76] The difference between historic and modern treaties is not primarily about the age of the document. As Binnie J. remarked in Little Salmon, at para. 54, "[t]oday's modern treaty will become tomorrow's historic treaty. The distinction lies in the relative precision and sophistication of the modern document." Historic and modern treaties were each negotiated under markedly different circumstances and often resulted in very different treaty texts. Historic treaties were often relatively brief, negotiated quickly, and intended to record oral promises made by the Crown to Indigenous signatories, who usually required translation and did not have the benefit of legal advice (Badger, at paras. 52-53; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 7; Jai (2010), at p. 27). Such treaties were "typically expressed in lofty terms of high generality and were often ambiguous" (Little Salmon, at para. 12). As a result, "courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gaps and achieve a fair outcome" (para. 12). [77] Modern treaties, by contrast, are usually the "product of lengthy negotiations between well-resourced and sophisticated parties" (Little Salmon, at para. 9; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC

58, [2017] 2 S.C.R. 576, at para. 36). They often consist of minutely detailed instruments, negotiated over the course of years, with the Indigenous signatories represented by lawyers and other experts (First Nation of Nacho Nyak Dun, at para. 36; Moses, at para. 7; Hogg and Wright, at § 28:38). As a result, because "[c]ompared to their historic counterparts, modern treaties are detailed documents[,] deference to their text is warranted" (First Nation of Nacho Nyak Dun, at para. 36). [29] The judge in the case at bar recognized that the provisions in question came from a modern treaty, so he should interpret them "in a generous manner": at para. 73, citing First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 at para. 37. [30] The Nisg̱a'a say that it was an error for the judge to fail to apply ss. 41 and 42 of the Nisg̱a'a Treaty correctly and that this court should intervene to ensure the Nisg̱a'a Treaty is applied so as to provide the Nisg̱a'a with full participatory rights in this action. Despite the judge acknowledging ss. 41 and 42, the Nisg̱a'a says he instead relied solely on the Party-Conferring Provisions in the BC NFA Act and federal NFA Act. In its submission, the judge provided no basis for why he preferred the statutory provisions and chose to ignore the treaty provisions and say it was an error to focus on the implementing legislation as opposed to s. 41 of the

Nisg̱a'a Treaty itself. [31] The Gitanyow say it was not an error for the judge to prefer the provisions in the settlement legislation rather than the treaty provisions since the legislation provides further detail of how notice shall be properly served. Further, it was immaterial to whether an issue of interpretation, validity or applicability in fact arose under the Nisg̱a'a Treaty. [32] I do not accept the Nisg̱a'a's argument. The Nisg̱a'a's Notice of Application states that the Nisg̱a'a Treaty provisions "are effectively mirrored by sections 8(1) and (3) of the Nisg̱a'a Final Agreement Act and sections 20(1) and (3) of the Nisg̱a'a Final Agreement Act". [33] Furthermore, s. 41 of the Nisg̱a'a Treaty refers generally to "the party raising the issue" properly serving notice on British Columbia, Canada and the Nisg̱a'a if such an issue arises. The implementing legislation provides specifics as to how the notice should be served. It does not explicitly or by implication engage with the core question about whether an issue arises in respect of the interpretation or validity of the Nisg̱a'a Treaty or the validity or applicability of any settlement legislation or any Nisg̱a'a law. While the judge did not expressly consider ss. 41 and 42 and instead focused on the Party-Conferring Provisions, he did refer to ss. 41 and 42 and the discussion in Gamlaxyeltxw v. British Columbia

(Minister of Forests, Lands & Natural Resource Operations), 2020 BCCA 215 in considering the effect of the Nisg̱a'a Treaty. It cannot be said that these provisions played no role in his analysis of the issue. [34] In my view, the judge was correct to focus on the Fourth FANOCC in considering whether the Party-Conferring Provisions had been engaged. [35] It bears emphasizing that the Gitanyow's claim has been amended several times. One constant that remained throughout was the Gitanyow sought a declaration of Aboriginal title and constitutionally protected s. 35 rights over the Claim Area. Up until and including the third further amended notice of civil claim, the declaration sought was phrased as: A declaration recognizing the Plaintiffs' existing aboriginal title and rights in and to the Gitanyow Lax'yip which are existing aboriginal rights within the meaning of section 35 of the Constitution Act, 1982. [36] The Fourth FANOCC reframed the declaration of Aboriginal rights and title sought: A declaration that the Plaintiffs, as representatives of the Huwilp, between them hold Aboriginal title to the entirety of the Gitanyow Lax'yip and other Aboriginal rights within the meaning of section 35 of the Constitution Act, 1982. [37] Notably, the Gitanyow deleted the following paragraph in the "Relief Sought" section of the Fourth FANOCC: A declaration that the Plaintiffs' aboriginal

title and rights include the right to ratify conditionally or otherwise refuse to ratify fee simple titles, Tenures or any rights or interests created or purported to be created directly or indirectly, at any time by either of the Defendants in relation to the Gitanyow Lax'yip or the resources thereof, including but not limited to those granted or purported to be granted to other aboriginal nations or portions of other aboriginal nations without the Plaintiffs' consent. The Fourth FANOCC also removed express references to the Nisg̱a'a Treaty or Nisg̱a'a treaty rights. [38] It is this context that the judge considered the application of ss. 41 and 42 of the Dispute Resolution Chapter in the Nisg̱a'a Treaty. He referred to Justice Hunter's discussion of the Nisg̱a'a Treaty in Gamlaxyeltxw, where he stated: [96] Paragraph 33 is one of three paragraphs found in chapter 2 of the Treaty under the sub-heading "Other Aboriginal People". The three paragraphs read as follows: 33. Nothing in this Agreement affects, recognizes, or provides any rights under section 35 of the Constitution Act, 1982 for any aboriginal people other than the Nisga'a Nation.

34. If a superior court of a province, the Federal Court of Canada, or the Supreme Court of Canada finally determines that any aboriginal people, other than the Nisga'a Nation, has rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement: a. the provision will operate and have effect to the extent that it does not adversely affect those rights; and b. if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision.

35. If Canada or British Columbia enters into a treaty or a land claims agreement, within the meaning of sections 25 and 35 of the Constitution Act, 1982, with another aboriginal people, and that treaty or land claims agreement adversely affects Nisga'a section 35 rights as set out in this Agreement: a. Canada or British Columbia, or both, as the case may be, will provide the Nisga'a Nation with additional or replacement rights or other appropriate remedies; b. at the request of the Nisga'a Nation, the Parties will negotiate and attempt to reach agreement on the provision of those additional or replacement rights or other appropriate remedies; and c. if the Parties are unable to reach agreement on the provision of the additional or replacement rights or other appropriate remedies, the provision of those additional or replacement rights or remedies will be determined in accordance with Stage Three of the Dispute Resolution Chapter. [97] The effect of these provisions is to ensure that the Nisga'a Treaty does not affect the s. 35 rights of other Indigenous groups. If an Indigenous group does establish s. 35 rights, either by final judicial determination or by negotiation with the Crown, and those rights are adversely affected by the provisions of the Nisga'a Treaty, the other rights will prevail, and appropriate measures will be negotiated to address the diminished Nisga'a

rights. These provisions provide significant protection for Indigenous groups such as the Gitanyow that have not yet established the nature and scope of their s. 35 rights in a way that could permit enforcement. In my view, however, they are neutral in respect of the Crown's obligation to consult the Gitanyow and, if appropriate accommodate their concerns. They do not stand in the way of consultation by the Crown, nor do they require it. It is when an Indigenous group's s. 35 rights have been established by treaty or land claims agreement with the Crown or, if necessary, by judicial determination that these provisions become operative. [Emphasis added.] [39] The judge, therefore, had to consider whether ss. 41 or 42 of the Nisg̱a'a Treaty had become operative at the time of the hearing of the application. [40] The Nisg̱a'a submits that the judge erred in finding that an issue regarding the interpretation or validity of the Nisg̱a'a Treaty, or an issue regarding the validity and applicability of any Nisg̱a'a law required the issue to be "directly" raised in the pleadings. It says the determinative question was whether an issue "arises" and that the Fourth FANOCC does indeed raise such issues. [41] Underlying the Nisg̱a'a's position is the assertion that the provisions are operative because the Gitanyow still seeks a declaration that it holds Aboriginal title to the entirety of

the Gitanyow Lax'yip and other Aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982. [42] Respectfully, I disagree. The judge reviewed the amendments contained in the Fourth FANOCC and accepted the Gitanyow's submission that the amendments reflected a conscious decision on its part to resolve only the question of its title, an issue which only engaged British Columbia and Canada. [43] In this court, the Gitanyow confirmed in its factum and at the hearing of the appeal that its claim is deliberately seeking to resolve only the narrow question of Aboriginal title and that even if it was successful at trial, the Nisg̱a'a Treaty would continue to be in force even the day after a declaration is made. The Gitanyow first wants to determine its rights against the Crown before trying to deal with any conflict with other entities such as Nisg̱a'a through out-of-court negotiations. [44] The Gitanyow also stated in oral submissions that if it is successful in establishing Aboriginal title in the action based on the Fourth FANOCC, this will not require the judge to decide whether or how that will affect Nisga'a Treaty rights. [45] Gitanyow says that it chose to restrict its claims as set out in the Fourth Amended NOCC in order to first deal with the relief sought against British Columbia and Canada, that is, a declaration of Aboriginal title and its s. 35 rights. It

submits these claims do not invoke the interpretation of the Nisg̱a'a Treaty and what it has to establish at the trial as the issues are currently framed. It acknowledges that to obtain a declaration of Aboriginal title, it will have to prove that it exclusively occupied the area over which it claims title. It argues that the court will not have to decide if a final determination of its s. 35(1) rights conflicts with the Nisg̱a'a or other potential stakeholders. That issue has been removed by the amendments set out in the Fourth Amended NOCC. [46] Even with the Gitanyow's narrowed amendments to the Fourth FANOCC, the Nisg̱a'a say that in order for the Gitanyow to prove its fundamental claim to Aboriginal title, it must establish that it occupied the Claim Area before the assertion of European sovereignty, and that its occupation was sufficient, continuous, and exclusive. Accordingly, the Nisg̱a'a submit that if the Gitanyow were successful in establishing Aboriginal title over portions of the Nass Area, the ruling would directly and necessarily affect the interpretation or validity of the provisions of the Nisg̱a'a Treaty that continue Nisg̱a'a Aboriginal rights in that portion of the Nass Area, and the validity and applicability of Nisg̱a'a laws therein. [47] I agree with the Gitanyow that the judge correctly adhered to the required interpretative framework when he considered

the applicable provisions of the Treaty, including ss. 33-35 and ss. 41(a) and (b). Those provisions, considered within the context of the Treaty as a whole, do not provide a general right to the Nisg̱a'a to receive notice of and participate in a proceeding as a party simply because its rights or interests could be affected by that proceeding, specifically the declaration as to Aboriginal title and other s. 35 rights. The Nisg̱a'a, British Columbia and Canada could have negotiated such a term but did not do so. Instead, the treaty right is expressly limited to the categories enumerated in s. 41. [48] Accordingly, the judge was correct in concluding that the Gitanyow's Fourth FANOCC did not directly raise any issues regarding the interpretation or validity of the Nisg̱a'a Treaty or the validity or applicability of any Nisg̱a'a laws in its claim. Further, the amended pleadings do not directly invite the court to make determinations about the Nisg̱a'a Treaty or Nisg̱a'a law. As such, the judge properly found that the Gitanyow was not directly raising any issues that engage the Party-Conferring Provisions at this time: RFJ at para. 86. [49] I also agree with the Gitanyow that although the word "directly" does not appear in the text of the Nisg̱a'a Treaty, it is clear that when read in its entire context, the judge's use of the word reflects the plain language of the provisions.

That is, the Treaty is intended to give the Nisg̱a'a the right to participate in litigation only when certain issues are raised. [50] I find support for the judge's conclusion regarding his interpretation of the Party-Conferring Provisions when the Nisg̱a'a's treaty rights and the Gitanyow's claims in the action are viewed in a broader context. If the Gitanyow is successful in obtaining some or all of the relief it advances in the Fourth FANOCC, any declaration obtained will not affect the s. 35 rights of the Nisg̱a'a or other potential stakeholders any more than the Nisg̱a'a Treaty affects its rights. This is in part because the Fourth FANOCC contains a withdrawal of claims relating to the various tenured interests of others, including the Nisg̱a'a. [51] If anything, the Nisg̱a'a is in a better position in the action than the Gitanyow was in the treaty negotiation process. This is because the current parties to the action, including the Gitanyow, accept that the Nisg̱a'a evidence which challenges the Gitanyow's assertion of Aboriginal title and s. 35 rights and in particular its assertion of sufficient, continuous and exclusive occupation of the Claim Area, should be before the Court at the trial. The Gitanyow were not afforded a similar opportunity in the treaty-negotiating process. [52] Considered contextually and as a whole, I understand the judge's conclusion that the

Party-Conferring Provisions did not apply "at this time" to mean that, subject to further amendments to the pleadings, it is only when the Gitanyow establishes its s. 35 rights in the underlying "judicial proceeding" that the Dispute Resolution provisions would "become operative". [53] In my view, the judge was correct in reaching this conclusion and in doing so, gave the deference required to the text of the Nisg̱a'a Treaty. Accordingly, I would not accede to this ground of appeal. Issue 2: Did the judge err in declining to add the Nisga'a as a party under the Rules and not following the decision in Cowichan? Reasons for Judgment [54] The judge did not accept the Nisg̱a'a's submission that he was bound by the principles of stare decisis to add it as a defendant based on the judgment in Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 1660 [Cowichan]. He found that there were several key differences between this case and Cowichan and that fundamentally, the decision of whether to add a party is discretionary: RFJ at para. 33. [55] In Cowichan, the Tsawwassen First Nation ("TFN") sought to be added as a defendant due to the overlap of its claim between its treaty lands with those asserted by Cowichan, which sought declarations relating to Aboriginal title of lands in what is now the City of Richmond. [56] The judge noted that at the time Cowichan was decided in 2016, the

decision to add the TFN as a party was informed by "the state of Aboriginal rights and title jurisprudence as it existed" as it was "still in its infancy": RFJ at paras. 35-36. [57] He then observed that, seven years after Cowichan, Aboriginal rights litigation had evolved, namely due to the decision of this court in Kwikwetlem First Nation v. British Columbia (Attorney General), 2021 BCCA 311 [KFN]: RFJ at paras. 37-38. [58] The judge found that the Gitanyow, by way of the Fourth FANOCC, had "expressly removed from their claim relief which would have given them the power to ratify, or not ratify, conflicting rights holders, including those of the Nisg̱a'a, a circumstance which did not arise in Cowichan": RFJ at para.

44. In his view, KFN had "overtaken" Cowichan and changed the legal landscape concerning the factors which must be considered on an application to add a party in a s. 35(1) litigation". When exercising his discretion and giving weight to the considerations of proportionality, access to justice and reconciliation, the judge decided he was not bound by the result in Cowichan to add the Nisg̱a'a as a party to the Gitanyow action: RFJ at paras. 45-46. [59] The judge then went on to conclude that the appellant should not be added as a defendant under Rules 6-2(7)(b)(i) and (ii) and 6-2(7)(c): RFJ at para.

49. With respect to the former, he held that any necessity for adding the Nisg̱a'a arising from the geographical overlap between the Nisg̱a'a Treaty areas and the Gitanyow's Claim Area was outweighed by: (a) the countervailing strong interest of the Gitanyow's access to justice in resolving its claim; and (b) its choice of how to frame the claim: RFJ at para. 66. [60] With respect to the latter, the judge found that the Nisg̱a'a lacked a direct interest in the action because the Gitanyow's claim had withdrawn certain of the relief it had previously sought. It no longer sought a declaration granting it a right to ratify, or refuse to ratify, fee simple titles, tenures, or any rights or interests created by either Canada or British Columbia in relation to its claimed area, such as those granted to other Aboriginal nations without the Gitanyow's consent: RFJ at para.

70. Discussion [61] This court has recognized that a discretionary decision of a case management judge in a complex case is entitled to a heightened degree of deference: KFN at para. 22, citing West Moberly First Nations v. McLeod Lake Indian Band, 2014 BCCA 283 at para. 19; Haida Nation v. British Columbia (Attorney General), 2018 BCCA 462 at paras. 20-21, 23. Specifically, a decision of whether to add a party to a proceeding is discretionary and is entitled to deference on appeal, unless the court finds the judge, in this case, misdirected himself, erred in law or principle, failed to give sufficient weight to relevant considerations, or if the result is so plainly wrong on the facts as to result in an injustice: KFN at para. 21, citing Madadi v. Nichols, 2021 BCCA 10 at para. 41. [62] The Nisg̱a'a acknowledges that decisions under Rule 6-2(7) are discretionary and are entitled to a high degree of deference. Nonetheless, it submits that the judge erred in law in his application of KFN and in declining to follow Cowichan, which he was obliged to do. [63] The Gitanyow's position is that the judge did not err in exercising his discretion. The judge in Cowichan did not have the benefit of the Supreme Court of Canada authorities that were later summarized in KFN and that emphasized that trial courts should be paying increased attention to minimizing costs and complexity when

litigating s. 35 matters. Was the judge bound to follow Cowichan Tribes? [64] The Nisg̱a'a position comes down to the argument that the judge, in the exercise of his discretion under Rules 6-2(7)(b) and (c), was "bound" as a matter of law by Cowichan Tribes to add it as a party in the action. [65] I disagree. In doing so, I do not consider it necessary to embark on a detailed review of the well-known principles that govern judicial comity, which the Supreme Court of Canada has articulated in R. v. Sullivan, 2022 SCC 19 at para.

65. The judge reviewed these principles in detail. [66] Those principles do not apply here. As this court explained in Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, it is not this court's role to review a judge's compliance with the Hansard Spruce Mills principles. The issue is whether, in light of the authorities in question, the judge erred in law or principle. [67] It is apparent that the judge carefully considered the decisions to which he was referred. He set out what he viewed as being the relevant circumstances in the case before him. He identified some similarities with Cowichan which included the fact that the TFN Treaty included a similar provision to s. 34 of the Nisg̱a'a Treaty. He also noted some significant differences. I also take his statement that the legal framework had been "overtaken" by KFN to mean that it had "evolved" since Cowichan. He was correct in making that observation. [68] I would not accede to this ground of appeal. The exercise of discretion under Rules 6-2(7)(b) and (c) [69] Considering the high level of deference accorded to a case management judge's discretionary decision and that adding a defendant over a plaintiff's objection requires "very strong reasons demonstrating necessity" (KFN at para. 39), I am of the view that the Nisg̱a'a has failed to identify any reviewable error in the judge's exercise of discretion. [70] The

applicable framework regarding Rule 6-2(7)(b) is outlined in KFN at paras. 63-64 and with respect to Rule 6-2(7)(c) at paras. 113-114. I shall deal with the Nisg̱a'a's submissions together since my conclusion is the same with respect to both sub-rules. [71] The Nisg̱a'a suggests that its direct interest is even more compelling here than in Cowichan, in that the Claim Area in this action includes portions of Nisg̱a'a Lands and various parcels of Nisg̱a'a Fee Simple Lands, over which the Nisg̱a'a Nation has fee simple ownership. It claims the judge erred in finding that the Nisg̱a'a does not have a direct and precise interest in the outcome of the proceeding, notwithstanding the amendments in the Fourth FANOCC. It says that the effect of a finding of Aboriginal title on Nisg̱a'a treaty rights and the Gitanyow's pleading that it has "the right to enforce their Aboriginal title as against other aboriginal and non-aboriginal peoples" necessarily implicates a direct and precise interest. [72] The Gitanyow argues that the question the judge needed to answer was not whether Nisg̱a'a interests could be affected by the future consequences of his decision, but rather, whether it was directly and precisely affected at the time of the hearing of the joinder application. It further submits that the judge appropriately considered proportionality, access to justice, and reconciliation with

respect to the Gitanyow's Aboriginal rights and title litigation in the context of all the parties before him. [73] The judge outlined in some detail the various arguments advanced by the Nisg̱a'a as to why it should be added as a defendant under Rule 6-2(7)(b) and (c), and why he was not persuaded that he should exercise his discretion to add it under the Rules: RFJ at paras. 50-66, 68-71. These arguments included that the Nisg̱a'a had relevant evidence to give with respect to the Gitanyow Claim Area. In that regard, the judge stated that the fact an applicant has relevant evidence is not sufficient to fulfill R. 6-2(7)(b)(ii) because the applicant can serve as a witness. He was not satisfied that given the resources of the existing defendants, they would not be able to lead evidence from Nisg̱a'a witnesses where such evidence was relevant at trial: RFJ at paras. 52-53. [74] The Nisg̱a'a, in an attempt to identify reversible error and, in particular, to establish that it was necessary for it to be added as a defendant, repeat many of the submissions that it advanced and which I have not accepted in relation to its first ground of appeal. [75] In considering the unique facts of this case, the judge placed particular weight on lessons learned from the last seven years of s. 35 litigation. He noted the warning sounded by this court in KFN that trials in the many hundreds of days

impede both access to justice for Indigenous litigants and the public interest in having s. 35 claims determined on its merits. [76] The judge here was the case management and putative trial judge charged with managing the preparation of the case for trial within the context of the Fourth FANOCC. As such, he was entitled to choose the course of action that would best advance the objectives articulated by this court in KFN and to dismiss the joinder application. In fact, as the Gitanyow observes in its factum, the judge signalled his willingness to find flexible mechanisms of including the Nisg̱a'a evidence and to attempt to "find solutions to the complexity of s. 35(1) Aboriginal title litigation going forward" should subsequent pleadings change the nature of the case: RFJ at para. 41. [77] I will briefly address the argument that it was necessary for the Nisg̱a'a to be added as a party since it had relevant evidence to give about whether the Gitanyow could establish sufficient, continuous and exclusive use of the Claim Area. [78] I agree with the interveners that British Columbia here conflates intervention with being added as a party and that Delgamuukw addressed the question of overlapping claims. As they outline in their factum: 10. Delgamuukw addressed the question of overlaps noting that: [i]t may[ ... ] be advisable if those aboriginal nations [with claims overlapping

those of the Plaintiffs] intervened in any new litigation. (Emphasis added.) 11. Indeed, the Nisga'a would be one such nation. There was no suggestion in Delgamuukw that the neighbouring Nations to the Gitxsan and Wet'suwet'en First Nations should be added as parties to the retrial of the Delgamuukw action. [79] After the hearing of this appeal, on August 7, 2024, the case management judge decided an application brought by the Tsetsuat/Skii km Lax Ha Nation ("TSKLH Nation") to be added as a defendant and to file a third-party notice naming British Columbia and Canada as third parties in the Gitanyow action (see 2024 BCSC 1432). However, the different factual context of that application led the judge to add the TSKLH Nation as a defendant in accordance with R. 6-2(7)(b) and (c) because it was just and appropriate to allow the Nation to defend against the Gitanyow's claim to Aboriginal title to overlapping areas. The TSKLH Nation assert an Aboriginal title claim to significant portions of land in the Gitanyow Claim Area: at para.

72. The judge also found that there were "very strong reasons" demonstrating necessity for adding TSKLH Nation as a defendant and that the TSKLH Nation have a direct and precise outcome in the proceeding given the overlapping Aboriginal title claim: at para.

73. The judge made no comparison or reference to the Nisg̱a'a's application to be added as a defendant or his own decision arising from that application. [80] The parties brought this recent decision to this court's attention without additional submissions. Since the judge did not refer to his decision which is at issue on this appeal, I will limit my comments to note that the circumstances of the TSKLH Nation are different from those of the Nisg̱a'a in that it is not a party to a modern treaty and the judge's observation as to the significant geographical overlap between the TSKLH and Gitanyow claims. [81] I would not accede to this ground of appeal. Issue 3: Did the judge err in the exercise of his case management responsibilities? Reasons for Judgment / the Order [82] Even though the judge found the Fourth FANOCC did not directly raise issues about the interpretation or validity of the Nisg̱a'a Treaty, it was his view that as part of his case management function, the Court could still make inquiries of the parties to determine whether statutory notice is required to be provided to the Nisg̱a'a; the timing of issuing that notice; and what participatory rights should be given to the Nisg̱a'a once notice was served: RFJ at para. 83. [83] The judge found that it was possible the interpretation of the Nisg̱a'a Treaty might become an issue at trial based on "certain averments" in the responses of Canada and British Columbia that plead reliance on the Nisg̱a'a Treaty and could raise discrete issues of the interpretation of that treaty: RFJ at para.

87. He recognized that given the current state of the pleadings the parties may seek to make further amendments as the trial approached as to whether ss. 8 and 20 of the settlement enabling legislation became engaged: RFJ at para.

88. These findings were made in the context of the judge's description of the state of the pleadings and his recognition that the issues for trial "may still be in flux": RFJ at para. 12. [84] The judge then ordered and directed that: 2. No less than 60 days before the trial of this action, or such further date as may be ordered by this Court, the parties are ordered and directed to schedule and appear at a judicial case management conference to address the topic of the issuance of any statutory notice to the Nisga'a under s. 20 of the Nisga'a Final Agreement Act, SC 2000, c.7 and s. 8 of the BC Nisga'a Final Agreement Act, RSBC 1999, c. 2, the timing of any such notices and for direction from the Court as to the Nisga'a's participatory rights at the trial of this action as a statutory party (the "Judicial Management Conference"); 3. The parties shall give NLG notice of, and NLG shall be entitled to appear at the Judicial Management Conference; Discussion [85] I noted above that a discretionary decision of a case management judge in a complex case is entitled to a heightened degree of deference. [86] As explained by Justice Moldaver for a majority of the Supreme Court of Canada in R. v. Samaniego, 2022 SCC 9, the trial management power allows judges to ensure trials proceed fairly, effectively and efficiently: at paras. 20-21. Samaniego also recognizes that this power is essential and versatile, but must be exercised carefully; it is important on appellate review that "trial management decisions are examined in the context of the trial as a whole, rather than as isolated incidents": at para.

26. Trial management decisions engage the judge's discretion and deserve deference, absent an error in principle or unreasonable exercise: at para. 26, citing R. v. Lacasse, 2015 SCC 64. [87] Two issues arise on appeal from this order and directions. [88] The first is that the Nisg̱a'a argues that since it had both a treaty and statutory right to be added as a defendant, a case management conference to address these issues was not necessary. [89] Since I would not accede to this ground of appeal, the question becomes whether the judge erred in the exercise of his case management powers in directing the judicial management conference. [90] In my view, he did not. The direction for the case management conference flowed logically from his findings that no issue was raised "at this time" as to the validity of the Nisg̱a'a Treaty or to the validity or applicability of the settlement legislation or to Nisg̱a'a law. He recognized that the issues for trial, including the pleadings, remained in flux. [91] The second issue relates to the judge's comments that the Nisg̱a'a evidence could be led by the Crown defendants since it had the "capacity and resources" to lead this evidence: RFJ at paras. 53, 64-65. [92] The Nisg̱a'a and the Crown respondents challenge this finding. [93] British Columbia submits that Indigenous groups are in a unique position with regard to providing evidence in

cases involving Aboriginal title claims by its neighbours. Putting the Province in the highly adversarial and paternalistic role of leading evidence of one Indigenous group to counter or respond to the claims of another Indigenous group does not foster or enhance reconciliation, nor does it ensure the best and most complete evidentiary record is before the court. [94] Canada, for its part, says there was nothing on the record before the judge to support the conclusion that the Crown defendants would or are able to tender the Nisg̱a'a's evidence. Canada claims that it is not well-placed to identify, weigh, and present evidence that is in the possession of the Nisg̱a'a. It also says it is not appropriate for Canada as a government defendant to lead evidence when the Nisg̱a'a is a fully self-governing nation. [95] The interveners submit that to the extent the evidence of the Nisg̱a'a's historic uses of the lands is relevant to determining the interests of the Gitaynow, it can be achieved without adding the Nisg̱a'a as a defendant. [96] The Gitanyow position is that it is for the judge to develop a solution tailored to the specifics of the trial he is managing. Accordingly, this court should leave decisions to him given that he alone is tasked with managing the case through the years of litigation to come. [97] The difficulty with the Nisg̱a'a and the Crown respondents' submissions

on this point is that the Nisg̱a'a had argued that it should be added as a defendant, in part because it had relevant evidence to give as to the Gitanyow's claim of exclusivity to the Claim Area. [98] Presumably because it sought to be added as a party, the Nisg̱a'a did not identify what the evidence would consist of nor how it should be led. It bears repeating that the Crown defendants took no position on the application and, notwithstanding an invitation of the judge to make submissions, chose not to do so. [99] Under these circumstances, the judge can hardly be faulted for deciding that the Crown defendants could lead the Nisg̱a'a evidence. [100] One of the recognized advantages of case management is the ability "to adjust to evolving circumstances and even to re-visit directions when necessary": KFN at para. 22. [101] The fact the Crown respondents have now decided to make substantive submissions is a cogent example of why the judge was correct to observe that the issues were "in flux". [102] It is for the judge, in the exercise of his case management responsibilities, either at the judicial management conference which he directed take place, or on a different occasion should he consider that advisable, to hear from the parties and the Nisg̱a'a as to the appropriate way that the Nisg̱a'a evidence be led and, if necessary, to re-visit that issue. [103] In my view, the Nisg̱a'a and the Crown respondents have not identified any reviewable error made by the judge in the exercise of his case management responsibilities. [104] I would not accede to this ground of appeal. Disposition [105] I would dismiss the appeal. "The Honourable Mr. Justice Abrioux" I AGREE: "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Mr. Justice Skolrood"