Seenupin v British Columbia

The Esquimalt Nation and the Songhees Nation are both pursuing treaty claims against the federal and provincial Crowns based in part on a historic document from 1850. Their respective claims will be heard together with a trial scheduled to commence in late November of this year. In this application, Esquimalt sought to amend its pleadings for this action, both to assert a different version of the treaty pleaded in their original Notice of Civil Claim (asserting that the historic document in question is merely evidence of a broader oral treaty giving more extensive rights) and to assert an alternative claim for damages flowing from a breach of their Aboriginal title resulting from the occupation of their title lands by third parties. The court granted leave for the proposed amendments with respect to the nature of the treaty asserted by Esquimalt but denied leave to amend the pleadings to assert an alternative claim based on a claim to Aboriginal title. The court held that it was too late to introduce such a significant issue into the litigation and that allowing the latter category of amendments would cause significant prejudice to the defendants.

For another recent decision in relation to this litigation see Sam v. British Columbia.