



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Spookw v. Gitxsan Treaty Society,









2015 BCCA 77




Date: 20150116

Docket: CA041986

Between:

Spookw also known as Geri McDougall on
behalf of herself and other Gitxsan Chiefs and members, Baskyalaxha also known
as William Blackwater Sr., Suu Dii also known as Yvonne Lattie, Luutkudziiwuus
also known as Charlie Wright, Xsimwits Inn also known as Lester Moore, Moolxhan
also known as Noola and as Norman Moore, Gitanmaax Indian Band, Glen Vowell
Indian Band, Gitwangak Indian Band, Kispiox Indian Band, and
Gitksan Local Services Society

Appellants

(Plaintiffs)

And

Gitxsan Treaty
Society, Her Majesty the Queen in Right of the Province of British Columbia and
the Attorney General of Canada

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Groberman

(In Chambers)




On appeal from: an
order of the Supreme Court of British Columbia dated
June 18, 2014 (
Spookw v. Gitzsan Treaty Society
, 2014 BCSC 1100,
Smithers Registry No. 15150)

Oral Reasons for Judgment




Counsel for the Appellants:



M.L. Macaulay and C.
  Joseph





Counsel for the Respondent, Gitxsan Treaty Society:



A. Schalles





Counsel for the Respondent, Attorney General of British
  Columbia



K.J. Phillips





Counsel for the Respondent, Attorney General of Canada



N. Wright and A.
  Singh





Counsel for the Proposed Intervenor, Tsetsaut/Skii km Lax
  Ha Nation



M.C. Power and D.P.
  Taylor





Place and Date of Hearing:



Vancouver, British
  Columbia

January 16, 2015





Place and Date of Judgment:



Vancouver, British Columbia

January 16, 2015








Summary:

Application for intervenor
status by the Tstesaut/Skii km Lax Ha Nation. The underlying appeal concerns
the right of the Gitxsan Treaty Society to speak on behalf of Gitxsan houses
during consultations and negotiations with the Crown. The TSKLH identified
itself as a Gitxsan house in earlier litigation, but now takes the position
that it is not a Gitxsan house. The appellant and respondents take the position
that the TSKLH is a Gitxsan house. Held: Application dismissed. Because the
TSKLH takes the position that it is not a Gitxsan House, and because the
validity of that position will not be before the court in the appeal, this
appeal will not finally determine rights of the proposed intervenor. It
therefore does not have a direct interest in the appeal. Further, the
proposed intervenor does not a have unique perspective on the issues before the
court, and there is no necessity of giving it intervenor status to ensure that
all issues are fully canvassed.

[1]

GROBERMAN J.A.
: This is an application by the Tsetsaut/Skii km
Lax Ha Nation (the TSKLH) to intervene in the appeal.

[2]

The underlying claim in this case concerns the right of the Gitxsan
Treaty Society to speak on behalf of Gitxsan houses during consultations and
negotiations with the Crown.

[3]

The appellant Gitxsan houses say that the Society is wrongly purporting
to represent them in discussions with the Crown. In addition to making claims
against the Society, they make claims against the Crown, both federal and
provincial, asserting that the Crown has breached its obligations to the
appellants by conducting consultations and negotiations with the Society.

[4]

The issue of who speaks on behalf a First Nation group is one of the
most complex and difficult facing First Nations, the Crown, and the courts in
respect of Aboriginal law. This case may ultimately be of considerable
importance to the development of the law in that area. In the circumstances, it
is not surprising that there is considerable interest in the appeal.

[5]

The intervention application is not made in a timely manner in
accordance with the Rules, but all parties consent to an extension of the time
to apply for intervenor status. Such an order, would, I think, have been
granted in any event, as there is no prejudice resulting from the delay.
Indeed, there is still an issue outstanding in the court below, that being
costs. The order in the court below has not yet been entered, so no one is adversely
affected by the late application.

[6]

I turn then to the question of whether intervenor status should be
granted. One of the underlying difficulties in this case is that there is
dispute as to the nature of the TSKLH. It appears to have been a plaintiff in the
Delgamuukw
litigation, apparently as a Gitxsan house. The parties to
this litigation, for various reasons (and perhaps with varying degrees of
commitment to the proposition), take the position that it is a Gitxsan house.
TSKLH, however, denies that it is part of the Gitxsan First Nation, and says
that it is an independent entity.

[7]

That issue is far too complex be determined on a simple chambers
application such as the one today. However, as I will explain, the nature of
the group does impinge on the analysis of whether to grant intervenor status. While
I will make reference to the issue, therefore, I am not making any determination
with respect to it, and nothing that I say should be taken as indicating that the
Court has come to even tentative conclusions as to the relationship, if any,
between the Gitxsan and the TLSKH.

[8]

It is now well-established in this Courts jurisprudence that there are
two separate routes to intervenor status. For convenience, I will refer to my
own reasons for judgment in the intervention application in
Ahousaht Indian
Band and Nation v. Canada (Attorney General),
2012 BCCA 330, upheld on
review by this Court at 2012 BCCA 404. There are a number of other cases that
stand for the same propositions, and I mention
Ahousaht
simply because
all of the parties have referred to it.

[9]

As indicated in para. 2 of the chambers decision in
Ahousaht
,
applicants will be granted leave to intervene in two circumstances. The first
is where a decision on an appeal will have a direct impact on the applicant. In
such situations, the applicant for intervenor status, while not a party to the
appeal, is in a position analogous to that of a party. His, her or its rights
will be determined by the appeal.

[10]

As I indicated in
Ahousaht
, concerns of fairness dictate that the
Court will generally grant intervenor status in cases where the proposed
intervenors rights will be directly determined in the appeal. Few prospective
intervenors can demonstrate a direct interest of that sort in litigation. As
this Court has indicated on a number of occasions, merely being affected by the
precedential effect of a decision does not constitute a direct interest.

[11]

The issue in this case is one of general importance in Aboriginal law
and general importance to First Nations collectives in Canada, as well as to
the Crown. The case, however, will only directly decide whether the Gitxsan
Treaty Society can properly negotiate and consult on behalf of specific Gitxsan
houses. If it is not a Gitxsan house, this appeal will only affect the proposed
intervenor in an indirect manner, by establishing general legal principles. On
the other hand, if it were a Gitxsan house, the applicant might be directly
affected by the appeal, because it would be in a position precisely analogous
to that of the appellants.

[12]

If I were to accept the position taken by everyone but the applicant on
this intervention application, then, I would find that the applicant had a
direct interest in the litigation, and I would grant intervenor status. The
intervenor itself, however, does not accept that it is a Gitxsan house. The
position it takes here, and the position that it will be entitled to take in
the future, is that the decision in this case will not be conclusive of its own
rights. The case will, therefore, not determine the intervenors rights
directly.

[13]

In my view, the proposed intervenors factual characterization of the
case is decisive, and the fact that the respondents on this application
consider the TSKLH to be a Gitxsan house cannot be determinative. It is the
TSKLH that will ultimately be entitled to make representations in an
appropriate case as to whether it is or is not a Gitxsan house.

[14]

Although Mr. Power made a valiant effort to suggest that this case is
one in which his client has a direct interest, I am not satisfied that any
decision by this Court will directly decide the capacity of the Gitxsan Treaty
Society to represent the interests of the TSKLH. That issue will have to be
determined in separate litigation.

[15]

In saying this, I recognize that if the Gitxsan Treaty Society is not in
a position to speak on behalf of the appellants, it is probably not in a
position to speak on behalf of the TSKLH, either. The converse is not true,
however. If the Gitxsan Treaty Society is entitled to speak for the appellants,
it may, nonetheless, not have status to speak on behalf of the TSKLH.

[16]

Because the TSKLH contends that it is not a Gitxsan house and that the Gitxsan
Treaty Society cannot in any sense speak for it, it seems to me that its
interests in this case do not differ from the interests of any other First
Nation collective in British Columbia or, indeed, in Canada. As an independent
First Nation, the intervenor might be affected by the precedential effect of
the appeal but it does not come within the directly affected branch of the
test for intervenor status.

[17]

For those reasons I find that the TSKLH has not established that it has
a direct interest in this litigation or that its rights will be directly
decided in this litigation.

[18]

The next question is whether the TSKLH brings a unique perspective to
the case such that it should be granted intervenor status to make arguments that
ensure that a specific perspective is not ignored and is in front of the court.

[19]

The issues upon which TSKLH wishes to make its intervention are the
fiduciary obligations of the Crown and the honour of the Crown. It wishes to
make arguments on how those obligations impact the Crowns duty to ensure that
it is conducting negotiations and consultations with appropriate First Nations
collectives.

[20]

With all due respect, I am not convinced that there is any uniqueness in
the perspective of the TSKLH with respect to the Crowns fiduciary obligations
and the honour of the Crown. The same arguments that the TSKLH proposes to make
can be made by the appellants and, indeed, could be made by any other Aboriginal
collective in British Columbia or Canada. While the arguments are in no sense
frivolous and will definitely be of interest to the court, there is no
necessity of giving intervenor status to the TSKLH in order to ensure that the
arguments are made.

[21]

For those reasons I am not convinced that intervenor status should be
granted to the TSKLH.

[22]

On this application the Gitxsan Treaty Society seeks costs from the
TSKLH. I am not convinced, given the nature of this application, that costs
should be awarded. This was an attempt by the TSKLH to offer its assistance to
the Court. While I acknowledge that the Gitxsan Treaty Society has opposed the
application and has provided the Court with argument, I am not convinced that
it has been put out or inconvenienced by this application in such a way that
would justify the granting of costs. Without purporting to provide any guidance
for judges in the future as to whether costs are granted on intervenor
applications, I am convinced that this application was in the interests of the
TSKLH and not contrary to the other parties interests. I am also satisfied
that it was in the interest of the Court to consider the application. For that
reason I am ordering that each party bear their own costs of this application.

The
Honourable Mr. Justice Groberman


