On April 7, 2021, the BC Court of Appeal confirmed a BC Supreme Court decision that had dismissed an application to remove the Gitanyow Nation’s longstanding lawyer from its aboriginal title case on the basis of an alleged conflict of interest. This application and appeal was brought be Chief Darlene Simpson, representing the Tsetsaut / Skii km Lax Ha Nation (“TSLKH Nation”).
The conflict of interest allegations arose from the landmark Delgamuukw aboriginal title litigation. Counsel of record for the Gitanyow Nation was one of the lead counsel in Delgamuukw, which was brought by the Gitxsan and Wet’suwet’en Hereditary Chiefs, including the Gitxsan Chief known as Skii km Lax Ha. Chief Simpson asserts that she now holds the title of Skii km Lax Ha, but no longer identifies as Gitxsan and claims a much larger traditional territory than was advanced by the Gitxsan House of Skii km Lax Ha in Delgamuukw. Chief Simpson’s claim overlaps significantly with the claims of neighbouring Gitxsan and Gitanyow Houses.
Chief Simpson applied to remove counsel on the basis of his prior representation of the Gitxsan House of Skii km Lax Ha in Delgamuukw. In the BC Supreme Court, Madam Justice Sharon Matthews disagreed, concluding that any connection 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.
On appeal, TSLKH Nation argued that Justice Matthews had misdirected herself and applied the wrong legal test, adopting a “straw man” argument that required her to prove that counsel for the Gitanyow Nation had committed professional misconduct. The Court of Appeal rejected that argument, and found that Justice Matthews was responding to the TSLKH Nation’s own arguments, in which “[h]ints of impropriety were abundant”. The Court of Appeal found no error in Justice Matthews’ determination that TSLKH Nation had not met their onus to provide “clear and cogent evidence” of a sufficient connection between the Delgamuukw and Malii claims, and that counsel was in possession of confidential information regarding the new identity and larger territorial claim of the TSLKH Nation.
The reasons for judgment are indexed as Skii km Lax Ha v. Malii, 2021 BCCA 140.
Mark Underhill and David Wu of Arvay Finlay LLP represented the Gitanyow Nation at both levels of Court.