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.
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 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:
 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:
 ... [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:
 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.
 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.
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).
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.