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ABORIGINAL LANDS - Types - Land claims - Pleadings

Tuesday, September 14, 2021 @ 5:22 AM  


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Appeal by the Province from the dismissal of its applications to join Canada as a defendant, for leave to issue third party proceedings against Canada and to amend its pleadings. The Kwikwetlem First Nation’s (KFN) 2016 notice of civil claim sought a declaration of Aboriginal title with respect to lands surrounding its main reserve in Port Coquitlam, title to which was held in fee simple by public bodies. It had not named Canada as a defendant and was not seeking any relief in respect of historical Crown grants. Its claim alleged infringements that occurred post-1982. Canada did not have custody or control of any part of the claim area since 1930. The Province sought to add pleadings concerning the alleged effect of the Terms of Union, pursuant to which the Province joined Canada in 1871, and the Constitution Act, 1867. The trial was currently scheduled for January 2022.

HELD: Appeal dismissed. The case management judge made no reviewable error in dismissing the applications. He did not mischaracterize the issues engaged by the pleadings and adequately considered the pleadings in their entirety. Federal jurisdiction was not triggered automatically by a claim under s. 35 of the Constitution Act. The Province did not show that Canada had a direct interest in the litigation or was necessary to properly adjudicate it. The judge did not err in concluding the Province’s proposed amendments failed to respond to the issues raised in the action. The judge did not err in concluding the KFN could restrict its claim in the manner it chose. It would be contrary to the principles of reconciliation and access to justice, considered in the context of modern Aboriginal rights litigation, to prevent it from doing so.

Kwikwetlem First Nation v. British Columbia (Attorney General), [2021] B.C.J. No. 1788, British Columbia Court of Appeal, M.V. Newbury, P. Abrioux and L. Marchand JJ.A., August 19, 2021. Digest No. TLD-September132021003