Canada: Plaintiffs Lack Standing To Bring Representative Action To Claim Aboriginal Rights

The British Columbia Supreme Court recently refused to allow the Chief and Council of the Hwlitsum First Nation ("HFN") to advance a representative action to claim Aboriginal title and rights on behalf of a historic rights-bearing community. In Hwlitsum First Nation v Canada (Attorney General), 2017 BCSC 475, Justice Abrioux held that the representative action could not proceed because the class or collective for whom the representative plaintiffs purported to act was not capable of clear and objective definition.

As we previously noted in the Canadian Class Actions Monitor's commentary on Araya v Nevsun Resources Ltd, 2016 BCSC 1856, British Columbia does not have a common law class action. Rather, the Class Proceedings Act, RSBC 1996, c 50 ("CPA"), sets up a comprehensive code for class actions in British Columbia. Representative proceedings under Rule 20-3 of the British Columbia Supreme Court Civil Rules are limited to actions in which the plaintiffs allege a common right or seek a common remedy. One example, noted in Nevsun, is where plaintiffs allege collective rights, such as Aboriginal rights or title.

Background

HFN, as represented by its Chief and Council, commenced an action on behalf of itself and its members seeking declarations of Aboriginal title and rights and compensation. HFN claimed to be the continuation of or successor to the Lamalcha Tribe, and specifically to be comprised of descendants of a prominent historical member of the Lamalcha, Si'nuscutun. The defendants included the Attorney General of Canada ("Canada"), the City of Vancouver and several First Nations.

HFN had previously applied to the Minister of Indian Affairs and Northern Development to be formed as a new band under s.17(1)(b) of the Indian Act, RSC 1985, c I-15. At the time of the hearing, that application was being held in abeyance by Aboriginal Affairs and Northern Development Canada.

The Standing Application

HFN claimed Aboriginal title and rights, which are collective rights that must be brought on behalf of an identifiable group that is capable of advancing a claim under s.35 of the Constitution Act, 1982.

Canada, supported by the other defendants, brought an application that challenged HFN's standing to advance the claim as a representative proceeding under Rule 20-3.

The plaintiffs argued that their standing to bring the representative action was a question of mixed fact and law that should be decided at trial. However, Justice Abrioux applied the reasoning in Campbell v British Columbia (Forest and Range), 2011 BCSC 448, affirmed 2012 BCCA 274, and found that it was appropriate to hear the issue of standing as a preliminary matter.

As in his earlier decision in Nevsun, Justice Abrioux held that British Columbia does not have common law class actions, but has both class proceedings under the CPA and representative proceedings under Rule 20-3. Furthermore, while representative actions under Rule 20-3 typically use the 3-part test for representative proceedings set out in Hayes v British Columbia Television Broadcasting Systems Ltd (1990), 46 BCLR (2d) 339 (CA), in the case of aboriginal claims, the 4-part test from Western Canadian Shopping Centres v Dutton, 2001 SCC 46, is used:

1. whether the collective rights-bearers on behalf of whom they purport to act is capable of clear definition;
2. whether there are issues of law or fact common to all members of the collective so defined;
3. whether success on the petition means success for the whole collective so defined; and
4. whether the proposed representatives adequately represents the interests of the collective.

HFN's principal claims were based on collective rights that could not be advanced by individuals, and a successful challenge to the representative plaintiffs' standing would "drive the plaintiffs from the judgment seat." Because of this, Canada was required to establish that it was plain and obvious that the representative plaintiffs did not have standing to advance the collective claims.

The Standing Application Decision

Justice Abrioux applied the Western Canadian Shopping Centres test, and found that the plaintiffs failed to meet the critical first step because the proposed class or collective could not be determined by objective criteria. HFN members could not be identified objectively, including for the following reasons:

• There was an inherent conflict in the proposed class definition, as the plaintiffs asserted in the Notice of Civil Claim that HFN was synonymous with the Lamalcha, but proposed a class definition that excluded Lamalcha who were not descended from Si'nuscutun.
• Ancestry alone is not sufficient to establish that a modern collective has a claim to the rights of a historic group.
• Some members of the proposed class were members of other bands, and may not support HFN's objectives.
• There was no evidence of any agreement authorizing the plaintiffs to represent the Lamalcha Tribe.

Significantly, membership in the HFN could not be objectively determined because it could depend entirely upon the exercise of discretion of the Chief and Council:

As a result, it was plain and obvious that the claim for Aboriginal title and rights could not proceed as a representative action, and was bound to fail. The individual claims of some of the plaintiffs, which were based on discrimination and violations of individual s.2 and s.15 Charter rights, were permitted to proceed following amendments to the Notice of Civil Claim.

Implications

Although the representative action can be suited for actions on behalf of a group claiming collective rights such as Aboriginal title, the first hurdle is establishing that such a group exists and can be defined through objective criteria. This case is an example in which the failure to properly define the collective resulted in the loss of the ability to advance an action to claim those collective rights.

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