On November 29, 2019, the BC Supreme Court dismissed a conflict of interest application to remove the Gitanyow Nation’s longstanding lawyer in its aboriginal title case (the Malii proceeding). The conflict of interest allegations arose out complex circumstances dating back to the landmark Delgamuukw aboriginal title litigation. In brief, counsel of record for the Gitanyow Nation was one of the lead counsel in Delgamuukw, which was brought by Gitxsan and Wet’suwet’en Hereditary Chiefs on behalf of their Houses. One of the plaintiffs in Delgamuukw was Johnny Wilson, who held the title of Skii km Lax Ha and represented the Gitxsan House of Skii km Lax Ha. The present application was brought by Darlene Simpson, who asserted that she currently holds the name of Skii km Lax Ha, but no longer identifies as Gitxsan, instead representing a different collective of aboriginal people – the Tsetsaut / Skii km Lax Ha Nation (“TSKLH Nation”). The TSKLH Nation asserts a much larger traditional territory than was advanced by the Gitxsan House of Skii km Lax Ha in Delgamuukw, which overlaps significantly with the claims of neighbouring Gitxsan and Gitanyow Houses.
Chief Simpson asserted that counsel for the Gitanyow Nation was in a conflict of interest and applied to remove him in light of his prior representation of the former Gitxsan House of Skii km Lax Ha in Delgamuukw. Justice Matthews disagreed, concluding that the “genesis of the conflict” arose out of the fact that Chief Simpson “changed the ambit of the claims made geographically” and that the nexus between the claims made in Delgamuukw and in Malii was created as a result of the “shift in self-identity and claims” of the TSLKH Nation. Justice Matthews dismissed the application with costs payable forthwith.
The reasons for judgment can be found here (indexed as Malii v. British Columbia (Attorney General), 2019 BCSC 2060).
Mark Underhill and David Wu of Arvay Finlay LLP represented the Gitanyow Nation in successfully defending the application.
