The Yaqan Nukiy are seeking intervenor status in the Sinixt Confederacy’s twin lawsuits against the provincial government.
Last fall, the Sinixt filed constitutional challenges, arguing the province has a duty to consult them on decisions that affect their rights, rather than just inform them of those decisions.
They also say they deserve a role in Indigenous education councils, which are meant to support the needs of Indigenous students to ensure their perspectives are part of the school system.
BC Supreme Court Justice Lindsay Lyster is hearing a series of pre-trial applications in Nelson this week.
The first is from the Yaqan Nukiy, also known as the Lower Kootenay Band, who say they should be allowed to advance arguments in the case. The provincial government supports their application, while the Sinixt oppose it.
Alexis Giannelia, a lawyer for the Yaqan Nukiy, argued that her clients meet the test to obtain intervenor status, including that they can bring a “unique and different perspective” to the court as a BC-based nation.
Both claims brought by the Sinxt challenge the government’s policy around consulting First Nations not based in BC.
The Sinixt Confederacy belongs to the Colville Confederated Tribes in Washington state, where most members live, but the bulk of their traditional territory is in BC. A landmark 2021 Supreme Court of Canada ruling, known as the Desautel case, established that the Sinixt are aboriginal peoples of Canada with a right to hunt in their traditional territory.
However, Giannelia said the findings in that case don’t necessarily translate into other rights held by BC-based nations.
She said the Yaqan Nukiy’s position is that the issues in the case must be approached carefully with consideration of the ripple effects on other nations if the Sinixt’s requests are granted.
The Yaqan Nukiy engage with the province and education councils regularly, Giannelia said, and they are asking the court not to make findings that could affect their rights or the rights of other BC-based nations under the School Act.
She argued the Yaqan Nukiy are directly affected by the proceedings brought by the Sinixt, and if the Sinixt are successful, the result would “dilute the already limited accommodation Yaqan Nukiy receives from the province.”
She said the Desautel decision suggests the government’s duty to consult with groups outside of Canada may differ from groups within Canada.
Giannelia said they are asking the court to contain the issues in the case and “be cautious of making extraneous findings not necessary to adjudicate the claim. The manner in which the pleadings have been made invites the court to make other findings that could affect Yaqan Nukiy.”
She said the claim doesn’t acknowledge overlapping territory with other nations or the complex history between the Sinixt and Ktunaxa.
Giannelia said the Yaqan Nukiy have a legitimate interest in making sure the court doesn’t make findings that prejudice their rights, as well as a broader public interest, because any rulilng that the government’s consultation policy is discriminatory could affect other Indigenous people in BC.
While the Sinixt Confederacy say the Yaqan Nuiky haven’t articulated what specific arguments it will make to advance its perspective, Giannelia replied that it isn’t necessary while the particulars of the case are still in flux.
As for the education claim, she said the Yaqan Nuiky have 20 to 25 members enrolled in the K-12 public school system and therefore have a direct interest in the proceedings. She said participating on the Indigenous education council is one of the only ways they can provide input on how education is delivered in their territory, making it an important mechanism for integrating their culture in the classroom.
She said any non-resident nation that is given an equal voice on the councils would “dilute” the role of resident nations, giving them less influence.
Sinixt response
In response, David Wu, representing the Sinixt Confederacy, said that while the Yaqan Nukiy are a neighbouring First Nation, proximity or overlapping territory isn’t enough on its own to grant intervenor status, and that a direct interest is only present if their legal rights are threatened. He said it wasn’t enough that a decision might cause a ripple effect.
He said the Yaqan Nukiy argument suggests that consultation with aboriginal groups is a “zero sum game,” where if the government consults or accommodates one group, it can’t do the same for another. He said that’s not the case and the same reasoning applies to the education claim. Wu said if the Sinixt are allowed to sit on Indigenous education councils, it doesn’t diminish any other nation’s right to do so as well.
He called it “speculative” to suggest having a Sinixt representative would negatively affect the education of Yaqan Nukiy students. Wu also said neither of the Sinixt’s claims involve rights or title, so it doesn’t make sense for them to have to explain where their territory overlaps, or to explain the historic relationships with other nations.
“We’re not asking the court to engage in any of those questions,” he said. “We don’t need an intervenor to say you should confine the scope of your findings. We’re already saying that.”
Wu said even in a trial where issues are still developing, an applicant for intervenor status still has to show “with some degree of particularly what it is actually going to say.”
He said some of what the Yaqan Nukiy have laid out matches “precisely” the provincial government’s position. “It’s not sufficient to say we’ll supply some distinct submission,” he said. “There has to be some meat to the bones that there will be something useful.”
The judge reserved her decision on the matter.
