Thursday, September 24, 2015

Metlakatla and Lax Kw'alaams denied respondent status in Gitga'at petition for Judicial Review

The Gitga'at First Nation has found success in a recent court session to determine if the Metlakatla and Lax Kw'alaams First Nations would be allowed respondent status in a Judicial Review being sought by the Gitga'at.

The First Nation located in the Hartley Bay area had previously expressed its concerns over issues related to a lack of proper Environmental Assessment consultation on proposed LNG development in Prince Rupert Harbour.

The Gitga'at First Nation first outlined their plans to seek the judicial review back on July 6th, a notification that the Lax Kw'alaams First Nation responded to in late July.

On Tuesday, a judgement in favour of the Gitga'at was released from the hearing which took place from September 3 and 4, with the findings and accompanying background posted to the BC Supreme Court website  on Tuesday.

In the review from Mr. Justice B. D. MacKenzie, the history as to the request from the two applicants (Metlakatla and Lax Kw'alaams) was outlined, with Justice MacKenzie noting one of the themes of the Gitga'at petition, in which the First Nation asserts that it holds non-exclusive aboriginal rights in the Prince Rupert Harbour and Lower Skeena River areas.

From that petition, the Gitga'at  First Nation is seeking to be entitled to full consultation when it comes to LNG project proposals in the Prince Rupert Harbour area.

The Gitga'at First Nation
had a successful day in
court earlier this month
That petition for Judicial review is still to be heard.

With that process underway, the two First Nations in the immediate Prince Rupert region were seeking to become a participant in the Judicial Review, submitting their own request for applicant status.

Expressing for the court their concerns about the Gitga'at claim of aboriginal title, stating that the Gitga'at has no claim as alleged.

Those themes made for much of the nature of the discussion related to the court session of earlier this month, as the Lax Kw'alaams and Metlakatla First Nations provided their observations as to why they should be granted respondent status in the judicial review proceedings that the Gitga'at have initiated.

In effect, the Gitga'at suggested, and successfully as things have turned out, that any intervention in their petition from the Lax Kw'alaams and Metlakatla First Nation would in the end undermine the Gitga'at petition at this time, which is focused on the correctness, or reasonableness of the EAO decision.

After the two days of discussion, featuring a review of events and background information, Justice Mackenzie in the end ruled in favour of the Gitga'at First nation, dismissing the applications from the Metlakatla and Lax Kw'alaams.

Among some of the key notes from his judgement:

"Given the totality of the material presented and counsel's submissions, I accept the submission of the Gitga'at that, even if they are successful at the judicial review, this would not prejudice or undermine the strength of the applicants' ultimate claims, as any declarations made at the judicial review would not be a final determination on this issue."

"In the present case, in my view, the subject matter of the judicial review and the relief sought by the Gitga'at is not an issue between the Gitga'at and the Lax Kw'alaams and the Metlakatla with respect to the relative strength of their competing claims of aboriginal rights."

"There is little doubt, in my view, to allow the applications, would, as submitted by the Gitga'at, overwhelm and in fact undermine the original petition for judicial review" ... "it would not be just and convenient if this were to occur"

"For these reasons, and notwithstanding the very able submissions of counsel for the applicants, I am not satisfied the applicants have established they ought to have been joined as parties, or that their participation in the judicial review is necessary to ensure that all matters pertaining to the scope of the judicial review may be effectually adjudicated upon, or that the test in s. 6‑2(7)(c) has been met."

While the Lax Kw'alaams and Metlakatla First Nations may have been denied their application on this issue, it would seem that they have set the table and indicated that there will be more to come on the topic of whether the Gitga'at First  Nation has any claim to the Prince Rupert harbour region.

That topic it would appear will be up for further discussion, a process that could capture the attention of the North Coast for some time to come.

Last week, the Lax Kw'alaams First Nation announced it's plans to proceed with title action on the Lelu Island and Flora bank are of Prince Rupert harbour.

You can review the full judgement from the September 4 decision here.

The Gitga'at First Nation has not outlined as of yet where their petition stands with the Supreme Court or when it will be heard.

No comments:

Post a Comment