This application arose out of an action that was brought by several Gitxsan wilps (traditional houses) against the Gitxsan Treaty Society in which the wilps claim that the Society is wrongly purporting to represent them for the purposes of consultations and negotiations with the Crown. The wilps have also claimed against both the federal and provincial governments, asserting that they breached their own obligations to the wilps by conducting consultations and negotiations with the Society. The wilps lost at trial and have appealed that decision. The Tsetsaut/Skii km Lax Ha Nation (TSKLH) brought a late application to intervene in the appeal with the consent of all parties.
Court of Appeal’s decision
The Court noted that there was a dispute as to the nature of the TSKLH. TSKLH had been one of the plaintiffs in the Gitxsan’s Aboriginal title litigation that culminated in the Supreme Court of Canada's decision in Delgamuukw v. British Columbia, and it apparently represented a Gitxsan wilp in those proceedings. The current parties to this litigation also took the position that TSKLH was a Gitxsan wilp. However, TSKLH itself denied being part of the Gitxsan First Nation and asserted that it was an independent entity.
The Court stated that for TSKLH to be granted leave to intervene in this matter it needed to show either that the litigation would have a direct impact on its rights and interests or that it could bring a unique perspective to the case that ought to be before the court.
While the Court accepted that the outcome of this case is of general importance to the development of Aboriginal law, to First Nations across Canada and to the Crown, it found that the issue being decided would only directly determine whether the Society could negotiate and consult on behalf of specific Gitxsan wilps. If TSKLH is not a wilp, then the outcome of this litigation can only impact it indirectly by establishing general legal principles. On the other hand, if TSKLH is a wilp then it might be directly affected by the appeal since it would be in the same position as the other wilpswho initiated the action. However, the Court held that TSKLH’s own characterization of itself as being an independent entity from the Gitxsan was determinative and stated the issue of TSKLH’s relationship with the Gitxsan would need to be determined in separate litigation.
The Court was not convinced that TSKLH could bring a unique perspective to the appeal either as the arguments it made with respect to the Crown’s fiduciary obligations and the honour of the Crown could be made by any other Aboriginal collective in Canada and it was not necessary for TSKLH to be given intervenor status in order for these arguments to be made.