Canada: Class Action Not The Right Choice For Aboriginal Rights Claim

Last Updated: May 17 2012
Article by Kevin O'Callaghan

The BC Court of Appeal has overturned a BC Supreme Court decision to certify a class action regarding a claim for damages and declaratory relief associated with impacts on Aboriginal Rights from the regulation of aquaculture in the Broughton Archipelago. In Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General),2012 BCCA 193, the BC Court of Appeal allowed the appeal holding that the Class Proceedings Act, R.S.B.C. 1996, c. 50 was not designed for the protection of collective rights.

Andrew Borrell, Kevin O'Callaghan and Katey Grist of Fasken Martineau's Vancouver office acted as counsel for the Intervenor, BC Salmon Farmers Association, on the hearing of the appeal.

To view the decision, click here.

Background

The Plaintiff, Chief Robert Chamberlin, chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation (the "KAFN"), commenced a class action and applied for certification on behalf of all Aboriginal collectives who have or assert constitutionally protected Aboriginal and/or treaty rights to fish wild salmon for sustenance, food, social and ceremonial purposes within the Broughton Archipelago.

The KAFN's claim was that the Crown's regulation of salmon aquaculture is responsible for the "serious and material decline in wild salmon stocks within the Broughton Archipelago and that this conduct infringes its fishing rights in breach of s. 35 of the Constitution Act, 1982". The plaintiff claimed for declaratory, injunctive and compensatory relief.

At the trial level, Mr. Justice Slade certified the proceeding (see Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2010 BCSC 1699) as a class action and defined the class as "all Aboriginal collectives who have or assert constitutionally protected Aboriginal rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago."

Mr. Justice Slade identified members of the class in a lengthy analysis and used historical and ethnographic materials (much of which he collected through his own research) to determine whether claimants had an ancestral tie to the pre-contact Kwak'wala language group. He concluded that to determine a rights holder, one should consider the connection with pre-contact customs, traditions and a shared history from the central identity of the pre-contact group rather than the connection with a current political structure.

The Appeal

The Federal and Provincial Crowns appealed the decision and the BC Salmon Farmers Association was granted intervenor status. The BC Salmon Farmers Association applied for and was granted Intervenor status on the appeal.

Although each of the Appellants and the Intervenor advanced numerous arguments as to why the Trial Judge erred in certifying the class action, the Court of Appeal decided to deal only with a preliminary issue, which they felt was determinative of the issue and could not be cured.

The Court of Appeal held that it needed to deal only with whether "Aboriginal collectives" have the capacity to avail themselves of the Class Proceedings Act; and whether there would be any objective criteria that could be used to determine who was in the class as defined by the chambers judge. The Court held that, "for two central reasons, the lack of legal capacity, and the lack of known objective criteria, the class definition does not meet the criteria set out in the legislation."

The Class Proceedings Act along with the Rules of Court and the common law mandate that an action may be brought by: a person, a corporation or a body given capacity through legislation. As a procedural act, the Class Proceedings Act does not create substantive rights and therefore does not give a body capacity to sue. Therefore, "a party to a class proceeding must be a legal entity with the legal capacity to sue".

A Band registered under the Indian Act is a juridical person and has the legal capacity to sue or be sued: Willson v. British Columbia (Attorney General), 2007 BCSC 1324, at paras 44-57. Although, a Band is not necessarily the proper entity to assert an Aboriginal right because Band membership does not necessarily establish the requisite ancestral connection.

On appeal the court concluded that the chambers judge had erred in assuming that "Aboriginal collectives", which are non-juridical persons, could be class members. Here, there was no evidence presented that the "Aboriginal collectives" are organized in a way that could confer legal status on them:

[79] Because the term "aboriginal collective" is not defined in the order or in the reasons for judgment, the question is whether such a group is a juridical person. As addressed above, the respondent argues that because the Aboriginal collectives hold constitutional rights, they ought to be able to sue through this class action. I decline to decide in a general way if any Aboriginal collective, for example a First Nation that may be organized and governed along traditional lines, could or could not be a juridical person. That question can be left for another day. Here, there is no evidence that the "aboriginal collectives" who are class members are organized in a way that could confer legal status on them. Most importantly, as I discuss in the following passages, the identity of the groups is not ascertainable without an in-depth examination of the merits of the individual liability issues in the proposed action.

The Court of Appeal declined to decide if any Aboriginal collective could be a juridical person. However, it nonetheless provided some guidance on the status of Aboriginal parties.

The Court reviewed the extensive analysis that the chambers judge went through in order to justify that there was some basis for concluding that there was a class to certify. At the outset, it noted that the chambers judge's independent research on a central issue was inappropriate in the circumstances. It also noted that the complexity of that analysis involved was not well suited to the class action vehicle:

[12] ... [T]he certification of Chief Chamberlin's representative action on behalf of "Aboriginal collectives" fails to specify objective criteria by which a collective could, without an ethnographic analysis and court determination, identify its membership in the class. This analysis would be part of the infringement analysis which the certification order leaves to a later determination of the individual issues. Moreover, the term "Aboriginal collective," does not, without more, identify a group that has legal capacity. Questions such as: who speaks for such a collective, how would it participate in the class action, how would it decide whether to opt-out, and whether determination of the common question would be binding on it, all illustrate the impermissible circularity of the definition of class members as certified in the order under appeal.

Section 4 of the Class Proceedings Act requires that members of a class be identified through objective criteria, "the class must be capable of clear definition... The definition should state objective criteria by which members of the class can be identified."

The Court of Appeal reviewed the objective factors in determining the class. While the chambers judge had held that the class should include Aboriginal collectives who "have" or "assert" certain rights the Court of Appeal disagreed. It noted that "having" an Aboriginal right is a merits-based criterion, that is dependent on the outcome of the litigation, and that the assertion of a right was a claims-based criterion which was subject to self-selection and insufficiently objective to meet the requirements for certification. As a result the Court concluded that both failed the "objective and certain" test.

The Court of Appeal concluded:

[100] I conclude that the chambers judge erred and was clearly wrong in certifying the class as all Aboriginal collectives who have or assert Aboriginal and/or treaty rights to fish within the Broughton Archipelago. The class is comprised of parties that do not have capacity to sue and the class definition does not meet the objectivity requirements of s. 4.

[101] No amendment to the certification order was suggested by the parties and, for the reasons I have already explained, I conclude that amendment is not a viable route for addressing the problems with the certified class definition.

As a result the Court has left no avenue open for the KAFN to cure their application for the matter to proceed as a class action.

Conclusion

Although this decision does stand for the proposition that an Aboriginal collective is not capable on its own of starting an action, that does not mean that there is any impediment to bringing claims of Aboriginal rights and title to the Courts. The tried and true method of doing so is a representative action in which one member of the group stands as the representative plaintiff for the remainder of the group – this is, in essence, a class action. A representative action reflects the collective nature of the rights held by the group, which collective rights do not lend themselves to being pursued solely by an individual and are awkward to pursue through an incorporated entity (as it can be difficult to demonstrate that the incorporated entity captures all the members of the group that holds the Aboriginal rights).

www.fasken.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Kevin O'Callaghan
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.