Yahgulaanaas v. Canada (Attorney General)

2025 BCSC 986 Yahgulaanaas v. Canada (Attorney General)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Yahgulaanaas v. Canada (Attorney General), 2025 BCSC 986 Date: 20250529 Docket: S248186 Registry: Vancouver Between: Jaada Sk'iila Yahgulaanaas a.k.a. Gina Mae Schubert Plaintiff And Attorney General of Canada and Attorney General of British Columbia Defendants Before: The Honourable Madam Justice Sharma Reasons for Judgment The Plaintiff, appearing in person: J. Yahgulaanaas Counsel for the Defendant Attorney General of Canada: J. Minkley Counsel for the Defendant Attorney General of British Columbia: D. Macauley E. Christie Place and Date of Trial/Hearing: Vancouver, B.C. February 7, 2025 Place and Date of Judgment: Vancouver, B.C. May 29, 2025 [1] This judgment addresses three applications brought in this action. Two were brought by the defendants seeking to strike out the notice of civil claim on the basis that the plaintiff does not have standing or that the pleadings do not disclose a cause of action. The third application was filed by the plaintiff, and it essentially seeks the same relief that is sought in the notice of civil claim. [2] For the reasons that follow, I order that the pleadings be struck out, without leave to amend, on the basis that the claim has no reasonable prospect of success. [3] Before addressing the legal issues, I will describe in more general terms the nature of the claim the plaintiff seeks to

bring. The Claim [4] The plaintiff is Jaada Sk'iila Yahgulaanaas, who is a member of the Haida people. The plaintiff seeks the following declarations in the notice of civil claim: Binding declarations of right within the meaning of Rule 20-4(1) hereby are made that (1) except with regard to native nations that consent to the application to them of sections 2-86, 88-93, 101-104, 106-108, 114-117 of the Indian Act, which usurp the aboriginal rights of governance and self-determination entrenched in the Constitution of Canada by section 35(1) of the Constitution Act, 1982, those sections are of no force or effect within the meaning of section 52(1) of the Constitution Act, 1982; and, (2) except with regard to native nations that consent to the application to their reserved lands on a case-by-case basis of sections 147-168 of the Land Title Act, which permit the registration of patents of lands, are of no force of effect within the meaning of section 52(1) of the Constitution Act, 1982. [5] As against the defendant the Attorney General of Canada ("Canada"), the claim alleges that the Indian Act, R.S.C., 1985, c. I-5, usurps Aboriginal rights of governance and self-determination by dictating how Indigenous people shall govern and behave themselves. As against the defendant the Attorney General of British Columbia (the "Province"), the claim outlines the plaintiff's fears of the

genocide of Indigenous people at the hands of the government policy, legislation, and the actions of civil servants. [6] Under "Legal Basis" in the notice of civil claim, the plaintiff relies upon the following: a) Royal Proclamation of 1763; b) Constitution Act, 1982, ss. 25, 35(1), 52(1), 91(24), 92 and 109; c) Article 10 of the British Columbia Terms of Union (UK 1871); and d) United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 [UNDRIPA]. [7] The plaintiff also relies on Haida Nation Recognition Act, S.B.C. 2023, c. 24; and Haida Nation Recognition Act, S.C. 2024, c. 29, under "Statement of Facts" in the notice of civil claim at paras. 10-11. [8] With regard to UNDRIP, she relies particularly on Article 7(1) which states that "Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person". [9] Portions of the notice of civil claim recite legislation and/or case law and, therefore, amount to legal argument, such as paras. 5-6, 8, 10-12, 18-20, 26-29, which would be considered a defect in the pleading. However, I recognize that the plaintiff is representing herself, and as such, I would not strike the claim on that basis alone, nor did the government defendants seek to do so. Instead, I take the notice of civil claim to represent both her pleading setting out the elements of the claim that she

wants to bring, as well as the legal argument she cites in support of those. [10] At paras. 13-17, she sets out what I understand to be the central theme of the action that she wants to bring. I reproduce those paragraphs in full here: 13 Historically, the crime of genocide has been committed in a multitude of ways, ranging from paying bounties for Indian scalps, to the modem way of the genocide that is being implemented pursuant to the Indian Act, and in British Columbia also under the auspices of the Land Title Act. 14 The modus operandi of the Indian Act in committing that crime is contained in its sections 2-62, which usurp the aboriginal rights of governance and self-determination. The statute is very long and extraordinarily replete with tyrannical laws that dictate how Indians shall govern and behave themselves. The implementation of this is conducted out of band offices following the microscopically detailed instructions of the legions of bureaucrats that constitute the federal Department of Indian Affairs. Deprived of the essence of their aboriginal rights by the Indian Act many Indians fall into depression, lose the will to live and resign themselves to premature death, which identifies the crime of genocide. 15 The same is true of life lived in the shadow cast by the Land Title Act. It governs the registration of patents. Registration signifies that the possession of

the patented land, the location of which is described with precision in the patent, is secure. Squatters cannot squat successfully, if the boundary is well defined. Registration is backed up by surveys. In the absence of registration, there is virtually no point in obtaining patents in the first place. 16 Indians thrive on their freedom of governance and self-determination when located on their Hunting Grounds within the meaning of paragraph 1 of the Indian Part of the Proclamation, but succumb to genocide when they are deprived of their freedom by patents registered pursuant to sections 147-168 of the Land Title Act. 17 Registration of patents under those sections guarantees that the patentees are secure in their possession of their patented lands. That signifies that the Indians are insecure in their possession of their Hunting Grounds if and when patents of them are registered. The patentees need only to ask BC's police to evict the Indians and the police obey the BC law. This causes genocide in the same way that the Indian Act does. [11] She sets out at paras. 21-23 what I understand to be the basis for her standing to bring this claim, which is that she was raised in the Haida Way, with the history of genocide and the fear of genocide being a central part of her upbringing. [12] I note that in her affidavits made January 24 and 29, 2025, the plaintiff deposed to the truth

of, and attached as an affidavit, a letter addressed to the court from the Haida Matriarch Tribunal. The letter confirms the support of the matriarchs for the plaintiff, and specifically for her bringing the claim. [13] In addition, during her submissions, the plaintiff referred to a number of other events that she says are demonstrative of the destructive effect of the Indian Act on the Haida people. She referred to tragic experiences of people in her family as well as their friends. She said that the Haida people's population had been eroded from 15,000 to the current population of only about 5,000 due to the effects of colonization and smallpox. [14] I explained to the plaintiff that on a chambers application, evidence must be given by way of affidavit and, therefore, statements that were made in court could not be relied upon by me as evidence, but I nevertheless allowed her to complete her presentation, and accept her statements as submissions. Canada and the Province's Positions [15] Canada and the Province both assert that the plaintiff, as an individual, does not have standing to advance a claim based on collective Aboriginal rights. Furthermore, they state that the Council of Haida Nation (the "Haida Council") is the proper representative to advance such rights, and it has already filed an action in this Court to that end. [16] In the alternative, both defendants

contend that the notice of civil claim does not disclose a reasonable claim because it is not in accordance with established precedent as to how claims under s. 35 (1) of the Constitution Act, 1982, must be framed. Apart from that, they also say that the claim improperly seeks to adjudicate Aboriginal rights on a general basis, and that the claim does not plead material facts to support any of the relief sought. [17] In relation to the claims specifically made against British Columbia, the Province argues that the claim does not translate the plaintiff's fears into allegations of any specific Indigenous group whose Aboriginal rights have been usurped. No Reasonable Cause of Action [18] For the reasons that follow, I find the claim must be struck on the basis of the defendants' alternative argument that the notice of civil claim does not disclose a reasonable claim. [19] I am mindful that the plaintiff is a self-represented litigant, but as I have previously noted, and while it is appropriate to grant some latitude to people who are not represented by legal counsel, such latitude cannot go so far as to ignore, or substantially erode, the governing Rules of Court or applicable law: Sandhu v. Mangat, 2025 BCSC 920 at paras. 47-48. [20] The test under R. 9-5(1)(a) of the Supreme Court Civil Rules is whether it is "plain and obvious" that the claim has no reasonable prospect of

success: Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para. 64. [21] The defendants argue that the claim is deficient for failing to identify any specific rights. Aboriginal rights must be adjudicated on a specific, rather than general, basis: R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 69, 1996 CanLII 216. The plaintiff's claim refers generally to detriments and a constellation of systemic factors that the plaintiff says amounts to her fear of the genocide of her people. It does not purport to recognize or enforce any specific right yet seeks to have the federal and provincial legislations struck down as invalid on the basis that they are inconsistent with s. 35 of the Constitution Act, 1982. [22] The defendants also submit that the claim fails to plead material facts required for the governing test for establishing infringements of Aboriginal rights: R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1111-1112, 1990 CanLII 104. The accepted test is to establish whether: (i) the limitation on the right is unreasonable; (ii) the regulation or limitation imposes an undue hardship; and (iii) the regulation or limitation denies the Aboriginal right holders' preferred means of exercising that right. [23] Regarding the statutes, Canada say that the claim does not specify how particular sections of the Indian Act, or the statute as a whole, affected specific rights holders. The Province

additionally argues that the claim does not address how each of the challenged sections of the Land Title Act, R.S.B.C. 1996, c. 250, affects right holders. Counsel for the Province points out that the impugned sections in the Land Title Act relate to procedural matters about registration. [24] The plaintiff's response is that she is relying on her individual right based on her fear of the ongoing genocide of the Haida people occurring as a result of government actions and policy, and actions of civil servants. [25] I agree with the defendants. The existence and content of an Aboriginal right depends on unique anthropological, ethnographical, and demographic history of the Aboriginal entity seeking to assert them: Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193, leave to SCC ref'd, 2012 CanLII 70221 (S.C.C.), D. Smith J.A. concurring at para.

104. In my view, the pleadings lack specificity and is fundamentally flawed. For example, the notice of civil claim and the plaintiff's submissions lack the material facts as to how the specific sections of the impugned legislations have affected specific rights holders, including herself. These deficiencies in the pleadings do not allow this Court to determine the issues that the plaintiff raises. [26] For those reasons, this claim has no chance of success and, therefore, must be struck. [27] I also conclude in this case to strike the claim without leave to amend. As the defendants have pointed out, this is the third notice of civil claim that the plaintiff has filed. She previously filed her first notice of civil claim on April 16, 2024, which was discontinued on April 22, 2024. She then filed her second notice of civil claim on April 22, 2024, which was amended on May 9, 2024, then discontinued on November 26, 2024, shortly before the defendants' applications to strike were scheduled to be heard on December 3, 2024. [28] The plaintiff stated that the previous two claims did not have enough information and she wanted to complete her claim, which is why she discontinued them. [29] The defendants submit that the plaintiff has already attempted to perfect her claim by filing three actions and, therefore, there is no prospect that further amendments would cure all of the problems that remain and have been identified. [30] I agree. I acknowledge that the court should be cautious to strike a claim especially for self-represented litigants, if, when amended, it could disclose a reasonable cause of action: Olumide v. British Columbia (Human Rights Tribunal), 2019 BCCA 386 at para.

10. However, the prior discontinuances and amendments show that the plaintiff had multiple opportunities prior to this hearing to amend and perfect her claim, but it remains flawed. [31] The fundamental issues in her pleadings are contrary to the approach to Aboriginal right claims that have been established through R. v. Van der Peet, [1996] 2 S.C.R. 507, and subsequent cases. Those claims must be adjudicated based on specific facts and evidence put forward by the parties, rather than on broad generalizations and historical abstracts, which could invite the court to inappropriately engage in judicial anthropology. [32] For all those reasons, I strike the claim without leave to amend. Standing [33] The defendants point to multiple authorities for the proposition that the Haida Council is the proper entity with the standing to bring the types of claims asserted by the plaintiff. [34] Canada notes that the Constitution of the Haida Nation [Haida Constitution], adopted in 2003, vested the governing power of the Haida Nation in the Haida Council, and mandated that the Haida Council conducts the external affairs of the Haida Nation. This, in turn, led to the Province and Canada entering into agreements with the Haida Nation through the Haida Council, including the GayG̱ahlda - Kwah.hlahl.dáyaa "Changing Tide" Framework for Reconciliation in 2021, and the Nang K'uula - Nang K'úulaas

Recognition Agreement in 2023. Upon the royal assent of the federal Haida Nation Recognition Act, Canada further recognized the Haida Council as the government that is authorized to act on behalf of the Haida Nation. [35] Canada also notes that the Haida Council has filed a claim in this Court seeking Aboriginal rights and title on behalf of the Haida Nation, as well as a declaration that the Haida Nation has Aboriginal rights to govern and exercise jurisdiction over Haida Gwaii in accordance with Haida law. That matter has been set down for trial to commence in May 2026. [36] The Province similarly notes that the Haida Council has been vested with the power to govern and authority to represent the Haida Nation. The Province additionally notes that the Gaayhllxid - Gíihlagalgang "Rising Tide" Haida Title Lands Agreement (the "Rising Tide Agreement") was signed in 2024 between the Haida Nation and the Province, which recognized and affirmed, among others, that: 2.1. British Columbia recognizes and affirms the Haida Nation has Aboriginal title to Haida Gwaii protected under section 35 of the Constitution Act, 1982. 3.1. The Haida Nation exercises its jurisdiction on Haida Gwaii in accordance with inherent Haida Title and laws. 3.2. British Columbia exercises its jurisdiction on Haida Gwaii in accordance with provincial law. 4.4. The Haida Nation consents to and will honour Fee

Simple Interests, including those held by Haida citizens. 4.5. The Haida Nation consents to Fee Simple Interests on Haida Gwaii continuing under British Columbia jurisdiction. [37] Further, the Province notes that ss. 4.1-4.5 of the provincial Haida Nation Recognition Act (which were the sections added to the legislation after the Rising Tide Agreement was signed) gave legislative effect to the province's recognition of Aboriginal title to Haida Gwaii. [38] All of which, the defendants say, allows this Court to strike the pleadings on the basis that the plaintiff lacks standing. [39] The defendants further note that standing can be addressed as a preliminary matter under R. 9-5(1)(a). In MacDonald v. British Columbia, 2022 BCCA 381, leave to SCC ref'd, 40551 (1 June 2023), Justice Grauer confirmed that standing is about "the appropriateness of the court's dealing with a particular issue presented at the instance of a particular party, and is concerned about the nature of the issue in the context in which it is raised": at para.

11. If the plaintiff lacks standing, there can be no cause of action, and the pleadings may be struck. Although R. 9-5(2) provides that evidence is not admissible on applications under R. 9-5(1)(a), courts have considered standing as an exercise of the inherent jurisdiction of the court which permits evidence: Ogden v. British Columbia Registrar of Companies, 2011 BCSC 1151 at para. 24. [40] Canada argues that proceedings to assert or enforce Aboriginal rights must be brought on behalf of the group capable of advancing the claim under s. 35 of the Constitution Act, 1982. It argues that the case law has established that Indigenous individuals cannot assert collective rights unless authorized to do so by the group: Moulton Contracting Ltd. v. Behn, 2011 BCCA 311, aff'd 2013 SCC 26. The defendants submit that the plaintiff has not properly brought a claim on behalf of any right-holding collective since the Haida Council is the proper representative to assert rights of the Haida Nation. The government argues that it would be contrary to the very purpose of Aboriginal rights to governance and self-determination to allow individuals to advance those rights in the place of a duly chosen representative of the rights holders. [41] The Province makes the same argument about that aspect of the claim that seeks to challenge the Land Title Act. [42] The plaintiff elaborated during her

submissions on her position that she has standing to bring her claim as an individual claim. Some of those submissions were not articulated in the notice of civil claim, but I reproduce below paragraphs from her notice of civil claim relevant to this issue: 21 As an infant and an adolescent, I was raised in the Haida Way which is centered round the family, friends, relations and tribal neighbours who spend much of the time outdoors in social meetings, gathered around council fires many of the time gossiping, but most of the time with the elders recounting the Haida tribal history and the younger generations listening with respect. 22 Much of that history rehearsed the ways in which the White-Man has been committing the genocide of Indians. 23 Fear of the genocide was inculcated into the very fibre of my being. By the time I was of university age, I understood the methodology of the crime. It has always been based upon government policy, legislation and the role of civil servants in administering those. [43] As discussed above, standing is concerned with the nature of the issue and the context within which it is brought before the court. The plaintiff claims that she has been individually and personally affected through her lineage and upbringing in the Haida Nation, and that who she is today is inextricably linked to the ways in which the contours of Canada's colonial history

affected the Haida Nation and its way of life. However, her reference and reliance on those broad societal claims and concepts in the articulation of her claim does not change the essential nature of the issue in this matter. The plaintiff's claims and relief sought are not individual ones. They are based on the collective rights of the Haida Nation. [44] The notion of the collective nature of Aboriginal rights is well established. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010,1997 CanLII 302, Chief Justice Lamer stated: 114 Another dimension of aboriginal title is its source. It had originally been thought that the source of aboriginal title in Canada was the Royal Proclamation, 1763: see St. Catherine's Milling. However, it is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see Kent McNeil, Common Law Aboriginal Title (1989), at p.

7. Thus, in Guerin, supra, Dickson J. described aboriginal title, at p. 376, as a "legal right derived from the Indians' historic occupation and possession of their tribal lands". What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward: see Kent McNeil, "The Meaning of Aboriginal Title", in Michael Asch, ed., Aboriginal and Treaty Rights in Canada (1997), 135, at p.

144. This idea has been further developed in Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322, where this Court unanimously held at p. 340 that "aboriginal title pre-dated colonization by the British and survived British claims of sovereignty" (also see Guerin, at p. 378). What this suggests is a second source for aboriginal title -- the relationship between common law and pre-existing systems of aboriginal law. 115 A further dimension of aboriginal title is the fact that it is held communally. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests. [Emphasis in original.] [45] The courts have previously addressed the question of standing in Aboriginal title and rights claims. For example, in Hwlitsum First Nation v. Canada (Attorney General)[Hwlitsum First Nation BCSC], 2017 BCSC 475, aff' d 2018 BCCA 276, leave to SCC ref'd 38325 (28 March 2019), Justice Abrioux noted that standing may be addressed as a preliminary matter in order to avoid unnecessary litigation: at para.

54. He also confirmed that the rights being asserted in that case were collective rights and, therefore, they had to be brought on behalf of the group capable advancing a claim under s. 35 of the Constitution Act, 1982: at para.

58. The test for whether a group is an appropriate collective to bring a representative action was set out by the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46. Justice Abrioux also quoted from his previous decision Araya v. Nevsun Resources Ltd., 2016 BCSC 1856 at paras. 62-63. [46] In Hwlitsum First Nation BCSC, the court held that that the representative claim was bound to fail because, among other thing, there was no evidence of an agreement authorizing the plaintiffs to represent the Lamalcha Tribe of Indians that they purported to represent: at para.

116. The defendants argue that analysis applies with equal force here. [47] I agree with the defendants that I am bound by the decisions from the Supreme Court of Canada and the government's recent statutes that recognise the Haida Council as the representative of the Haida Nation. [48] However, I note that the defendants' position that only the Haida Council should be able to bring claims such as this seems to retread the same proposition that the Supreme Court of Canada rejected in Behn v. Moulton Contracting Ltd., 2013 SCC 26 [Behn SCC]: [33] The Crown argues that claims in relation to treaty rights must be brought by, or on behalf of, the Aboriginal community. This general proposition is too narrow. It is true that Aboriginal and treaty rights are collective in nature [citations omitted]. However, certain rights, despite being held by the Aboriginal community, are nonetheless exercised by individual members or assigned to them. These rights may therefore have both collective and individual aspects. Individual members of a community may have a vested interest in the protection of these rights. It may well be that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights, as some of the interveners have proposed. [34] Some interesting suggestions have been made in respect of the classification of Aboriginal and treaty rights. For

example, the interveners Grand Council of the Crees and Cree Regional Authority propose in their factum, at para. 14, that a distinction be made between three types of Aboriginal and treaty rights: (a) rights that are exclusively collective; (b) rights that are mixed; and (c) rights that are predominantly individual. These interveners also attempt to classify a variety of rights on the basis of these three categories. [35] These suggestions bear witness to the diversity of Aboriginal and treaty rights. But I would not, on the occasion of this appeal and at this stage of the development of the law, try to develop broad categories for these rights and to slot each right in the appropriate one. It will suffice to acknowledge that, despite the critical importance of the collective aspect of Aboriginal and treaty rights, rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour. In a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature. Nothing more need be said at this time. [Emphasis added.] [49] Although the Supreme Court of Canada did not conclusively determine the framework to be applied in instances where individuals claim Aboriginal rights, in my view the issue of standing to bring such

claims is not so clear cut that it is appropriate to be determined at this preliminary stage of the proceeding. This is particularly so in this case, where as noted above, I have determined the decisive issues is the deficiency of the pleading and claim before the court. [50] In MacDonald, Justice Grauer affirmed the party's lack of standing to challenge the constitutionality of the Land Act, R.S.B.C. 1996, c. 245, on the basis that his claim could "only succeed by establishing the Aboriginal title and rights of the Haida Nation" to the property in question: at para.

16. Given the party's lack of authority to bring such a land title claim on behalf of the Haida Nation, and that the Haida Nation was asserting this right in its own litigation, the party was not the not the proper entity to bring such a claim. [51] Although the plaintiff in this matter is seeking a similar relief as that sought in MacDonald--declaration of unconstitutionality of certain legislation--the basis for the relief is different. In MacDonald, the party challenged the constitutionality of the Land Act in an attempt to defeat the Crown's authority to bring a claim in trespass against him for occupying Crown land without a license, which required that he prove that the land was not Crown land: MacDonald at para. 15, citing Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 at paras. 115-117. In this matter, the plaintiff is challenging the constitutionality of portions of the Land Title Act and the Indian Act without involving questions of title over land. [52] The defendants' position that the Haida Nation Recognition Act, and the recognition of the Haida Council as the government that is authorized to act on behalf of the Haida Nation, means that Haida individuals cannot bring constitutional challenges to legislation without the involvement of the Haida Council, seems to lead to an incongruent result that Haida individuals are foreclosed from relying on their

Aboriginal rights as a defence to prosecution. [53] The issue of standing in this matter, arising in the particular context of a constitutional challenge to legislation without involving land title claims or a duty to consult, is not so clear cut. At this stage of the proceedings, I do not find it would be appropriate to make a finding that no cause of action exists on the basis that the Haida Council is the only entity that can seek constitutional challenge of legislations based on s. 35 of the Constitution Act, 1982.I add that I am particularly reluctant to do so when the Haida Council is unrepresented. [54] Given my finding that the pleading does not disclose a reasonable claim, however, I do not find it appropriate to address the additional arguments that the plaintiff brought in support for her standing to bring this issue to court. [55] Accordingly, the claim is struck without leave to amend. "Sharma J."