The Supreme Court of Canada this week will hear two cases that involve overlapping Aboriginal title, as courts across the country grapple with increasingly complex questions related to Indigenous land rights.

Both cases at the top court involve the Gitanyow First Nation, which is seeking to prove that it has Aboriginal rights and title to about 6,200 square kilometres of land in northwestern British Columbia.

The Gitanyow claim overlaps Nisga’a Nation land, which is covered by a modern treaty that provided governance and ownership rights over around 2,000 square kilometres. The Gitanyow land also overlaps an area that the Tsetsaut/Skii km Lax Ha Nation claim as their territory. The land is in the Nass River area, north of Prince Rupert.

The Nisga’a and Tsetsaut both want to be part of the Gitanyow title case but the lower courts in general excluded them, leading to the appeals to the Supreme Court.

The cases at the top court, being heard together on Monday and Tuesday, are focused on procedural issues when there are competing Aboriginal claims for the same land. They highlight difficult questions that are expected to become more common in future.

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The Tsetsaut in a legal filing called it a “new era of Aboriginal rights and title litigation – one involving overlapping claims.”

Thomas Isaac, an expert on Indigenous legal issues at Cassels who is not involved in the cases, said the Gitanyow situation illustrates the complexity of this area of law.

“This is just the start of the overlap discussions, not the end of it,” Mr. Isaac said.

Questions of Aboriginal title and land ownership vaulted into the headlines this year after a B.C. superior court decision in August on a Cowichan Tribes claim in the Vancouver area.

The lower court ruled that the Cowichan have Aboriginal title over a portion of land on the Fraser River, and that it supersedes some privately held land titles known as fee simple titles.

The Cowichan decision has stoked confusion among politicians, legal experts and the public, and is slowly moving into the appeals process, expected by most observers to eventually make it to the Supreme Court later this decade.

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While the Gitanyow cases at Supreme Court this week aren’t directly related to the Cowichan ruling, there are similarities. In the past, most Aboriginal title claims came from a specific Indigenous group and the adversaries in court were provincial and federal governments. In Cowichan, however, two of the defendants were other Indigenous groups: the Musqueam Indian Band and Tsawwassen First Nation, whose territories overlap with the Cowichan claim.

In the Gitanyow case, the Nisga’a want to be added as a defendant, a push that failed in the lower courts.

The Gitanyow for more than a century have sought a claim to the land and want the Supreme Court to uphold the lower court decisions that generally kept competing First Nations out of their title case.

“The title has always been ours,” said Joel Starlund, Gitanyow executive director.

The Gitanyow’s goal is to relaunch its title case by mid-2026.

But at the Supreme Court, there are a number of calls for multiple Indigenous voices to be heard when there are cases of overlapping claims.

The Congress of Aboriginal Peoples is an intervenor in both Gitanyow cases. The group represents Indigenous people living off-reserve, and in a legal filing said a permissive and flexible approach should be taken to the addition of Indigenous parties in Aboriginal rights litigation.

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Lawyer Andrew Lokan, counsel for the congress, said the legal shift to cases where Indigenous groups vie against each other is notable.

“This is one where the court will have to be quite alert to what happens between different Indigenous collectives,” he said.

The Nisga’a Nation asserts that the Nisga’a Final Agreement, their modern treaty, which took effect in 2000, means they should be able to fully participate in court in the Gitanyow title claim.

Disputes between the Nisga’a and Gitanyow extend beyond questions of title. The Gitanyow oppose a proposed natural gas pipeline that would cross their territory to a planned liquefied natural gas export facility, in which the Nisga’a are a partner.

In the Gitanyow title case, the federal and B.C. governments agreed the Nisga’a should be a full defendant. Ottawa said such decisions should be made on a case-by-case basis. B.C., in its written arguments, said perspectives of all relevant Indigenous communities are necessary at a trial court to assess tests for Aboriginal title.

The Tsetsaut do not have a treaty and are working on their own claim. The federal government took no position on the Tsetsaut question. B.C. said the Supreme Court should leave the Tsetsaut’s claim out of the Gitanyow case, but the nation should be permitted to be a defendant.