Canada: Aboriginal Title Claim Dismissed Due To Lack Of Standing: Hwlitsum First Nation v. Canada (Attorney General), 2017 Bcsc 475, Supreme Court Of British Columbia (Abrioux J.), 24 March 2017

The B.C. Supreme Court dismissed an Aboriginal title claim on the basis that the plaintiffs lacked standing to bring this action as a representative proceeding. The Court held that the proposed class or collective asserting Aboriginal rights and title was not defined in a manner that permits its membership to be determined by objective criteria. Ancestry alone is insufficient to establish that a modern collective has a claim to the rights of a historic group. In this case, the plaintiffs defined themselves as being the descendants of only one member of the relevant historic group (the Lamalcha Tribe). The alleged objective criteria for membership of the Hwlitsum First Nation depended entirely upon the discretion of the Chief and Council. The Court therefore held that the representative claim based upon section 35 rights were bound to fail and must be dismissed on that basis.

The underlying action was commenced in November 2014 by members of the Wilson family, purportedly on behalf of the "Hwlitsum First Nation". The plaintiffs claim that the Hwlitsum First Nation is a recognizable Aboriginal group that is descended from the Lamalcha Tribe of Indians.

The plaintiffs seek a wide array of remedies in their action, including $2 billion in damages, and a declaration of Aboriginal title to a large area of southwestern British Columbia, including most of the southern Gulf Islands and the Lower Mainland. They also sought an order that 160 acres of land within Stanley Park be transferred to each of six members of the Hwlitsum First Nation.

The defendants in this action were initially Canada, British Columbia, the City of Vancouver, the Vancouver Park Board, the City of Richmond, the Corporation of Delta, the Capital Regional District, and the Islands Trust. During the litigation, three First Nations were added as co-defendants: the Tsawwassen First Nation, the Penelakut First Nation and the Musqueam First Nation.

At an early stage in the litigation, Canada applied to strike out the plaintiffs' claim on the basis that they lacked standing or that the claim represented an abuse of process. Mr. Justice Abrioux was appointed as the case management judge for this proceeding in April 2015. The hearing of the "standing application" was adjourned several times, and many interlocutory applications followed. See the decisions indexed as 2015 BCSC 1341, 2015 BCSC 2100, 2016 BCSC 476, and 2016 BCSC 2104.

The standing application was heard in December 2016. Canada argued that the Hwlitsum plaintiffs did not satisfy the criteria for a "representative action". Further, Canada took the position that this litigation constitutes an abuse of process since there is already an Aboriginal title claim brought by the Penelakut First Nation. There was evidence that the remaining members of the Lamalcha Tribe had been amalgamated into the Penelakut Indian Band in 1877 by the Indian Reserve Commission.

Abrioux J. held that the representative claims in this action are bound to fail, and must therefore be dismissed on that basis. It was unnecessary to consider whether the litigation constituted an abuse of process.

The Court agreed that the issue of standing can be addressed as a preliminary matter in order to avoid unnecessary litigation. The issue of standing arises with regards to the plaintiffs' claims under section 35 of the Constitution Act , 1982 that they hold Aboriginal rights and title as the descendants of the Lamalcha Tribe of Indians. Such rights are collective in nature.

The parties agreed that the applicable test for whether a representative action is appropriate is set out in Western Canadian Shopping Centres v. Dutton, 2001 SCC 46. Abrioux J. noted that Dutton is a class action proceeding, and that the law on representative proceedings in British Columbia may be governed by Hayes v. British Columbia Television (1990). However, it was unnecessary to decide the point since the tests in both cases contained the following requirement: is the purported class capable of clear and finite definition?

Abrioux J. held that the Hwlitsum plaintiffs failed to satisfy the requirement that the proposed class or collective is defined in a manner that permits its membership to be determined by objective criteria. The pleadings filed by the plaintiffs contain a definition of Hwlitsum citizenship. During the hearing of the application, the plaintiffs amended the class definition to include "all members of the Lamalcha Tribe, being the descendants of Si'nuscutun, who are not members of any other Indian Band". Abrioux J. held that the plaintiffs cannot define themselves as descendants of only one member of the ancestral group, and at the same time submit that they are the descendants of all the Lamalcha. The Court held that this was "fatal" to the action proceeding as a representative action. Abrioux J. listed other problems with the plaintiffs' definition of the proposed class:

  • ... Ancestry alone is insufficient to establish that a modern collective has a claim to the rights of a historic group
  • some of the alleged descendants of Si'nuscutun are members of other bands. The interrelationship of the HFN and other First Nations will make it virtually impossible to ascertain whether that descendant is one who supports the objectives of the plaintiffs or favours the positions advanced by the Band of which he or she is a member ...
  • while the revised class definition excludes those individuals who are members of other bands, membership in the HFN may depend entirely upon the exercise of the discretion of the Chief and Council who are plaintiffs in this proceeding ...
  • ... the HFN's self-identification is, at best, "of recent vintage"the fact certain organizations may have recognized the HFN does not mean the representative claim is not bound to fail. In fact, there is no evidence that these organizations are even aware of the new class definition proposed for the first time during the hearing of the Standing Application. And, in any event, Canada's application is supported by Tsawwassen, Penelakut and the Musqueam.

Abrioux J. held that it appeared that the plaintiffs were attempting to construct a First Nation out of one family, and then assert s. 35 Aboriginal title claims. He further held:

With respect, the HFN's alleged objective criteria for membership are more akin to those of a private members' club where selection is dependent on the board of directors' ultimate discretion, rather than on proving membership in a recognized collective with the standing to advance a claim for s. 35 rights and remedies.

And in any event, the HFN are faced with an inherent conflict in their proposed class definition, which cannot be cured by reference to purported objective criteria.

Abrioux J. rejected the arguments of the Hwlitsum plaintiffs that standing was an issue of mixed fact and law that could not be decided on a summary basis. He also rejected the application of Powley principles to the plaintiffs in this case.

The Court therefore dismissed the representative claims in this action as being bound to fail. Abrioux J. noted that the Amended Notice of Civil Claim also contains individual claims for alleged breaches of sections 2 and 15 of the Charter of Rights. The pleadings fail to provide any specific details regarding these claims. In the circumstances, Abrioux J. was not prepared to stay or dismiss the Charter claims at this stage. He held that it was appropriate to allow the plaintiffs the opportunity to decide whether they want to advance those claims. Abrioux J. seized himself of any application to amend the pleadings to particularize the basis of the individual Charter claims.

[Editor's note: Patrick G. Foy, Q.C. and Scott Kerwin of BLG represented The City of Vancouver and the Vancouver Park Board in this proceeding]

http://courts.gov.bc.ca/jdb-txt/sc/17/04/2017BCSC0475.htm

About BLG

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
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

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.