Case Brief: Kwikwetlem First Nation v. British Columbia, 2020 BCCA 311

By Courtney Jacklin and John Gailus

What this case is about

In 2016, the Kwikwetlem First Nation (“KFN”) filed a notice of civil claim seeking, among other things, a declaration of Aboriginal title to lands surrounding the KFN’s main reserve in Port Coquitlam. Except for one parcel of land comprised of unregistered Provincial Crown land, title to the claimed lands is currently held in fee simple by five public bodies – the Province of British Columbia (the “Province”), Port Coquitlam, the Metro Vancouver Regional District, the British Columbia Housing Management Commission, and the Provincial Rental Housing Corporation, all of whom are named defendants. KFN intentionally did not name the Attorney General of Canada (“Canada”) as a defendant as none of the relief sought was against Canada.

The Province applied to have Canada added as a defendant under the Supreme Court Civil Rules. The case management judge dismissed the Province’s application. The Court noted that (i) KFN’s claim does not involve reserve land, and (ii) KFN has confirmed that it takes no issue with the original Colonial or Crown grants of land. The Court also noted that Aboriginal title claims do not necessarily require both federal and provincial Crowns to be parties and that section 35 rights do not automatically implicate federal jurisdiction. The Province then applied for leave to add Canada as a third party to the claim and to amend its pleadings accordingly. These applications were similarly dismissed. The Province appealed all three decisions to the British Columbia Court of Appeal.

What the Court found

The BC Court of Appeal dismissed the Province’s appeal, confirming that Canada’s participation is unnecessary. The Court noted that the decisions of case management judges are entitled to significant deference.  Further, the Court recognized that KFN chose how it wished to prosecute its claim, which they hope will lead to a simpler, more focused trial (para. 81). Conversely, the Province effectively sought to expand the scope and complexity of KFN’s claim to include Canada and the original grants (para. 175).

Rather than challenge the original grants, KFN’s claim challenges the defendants’ post-1982 actions. While the original Crown grants and Canada’s historic actions are relevant because they bear on the defences of extinguishment and displacement, the Court confirmed that it was unnecessary to add Canada as a party. Nothing prevents the Province or the other defendants from addressing these historical facts or articulating any relevant defences on their own (see paras. 81 and 94). Most importantly, the Court held that section 35 rights do not automatically trigger federal jurisdiction (para. 96).

Why this case is important

This case is important because it confirms that Aboriginal rights and title claims do not necessarily require both the federal and provincial Crowns to be parties.  One way of ensuring that Aboriginal rights litigation proceeds in a timely and cost-effective manner is to ensure that only necessary parties are included.  If a claim relates solely to the exercise of provincial power, it is unnecessary to include Canada as a party even if Canada’s past actions form part of the relevant historical facts.

This case is also important because it addresses Indigenous peoples’ ability to frame their Aboriginal title claims in a manner of their own choosing (para. 6). Significantly, the Court recognized that it is not necessary or desirable for Indigenous peoples to litigate every issue with respect to their rights within a single claim. Rather, broad pleadings risk unsatisfactory outcomes for all participants. The provincial and federal Crowns should respect the way Indigenous peoples chose to articulate their claims and should not try to expand the scope and complexity of Aboriginal rights litigation.