Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193

This case deals with an action brought by the Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation and his attempt to have the action certified as a class action with the class defined as “all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty 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.” The issue in this appeal is whether the certified description for the plaintiff class is statutorily permissible. The British Columbia Court of Appeal holds that not only is the class not properly defined, but that there is no acceptable definition which the Court could substitute for the one used by the chambers judge.

The reasons the court gives for holding that the class definition does not meet the legislative criteria are to do with lack of legal capacity of the group as defined and lack of known objective criteria by which a collective could identify its membership in the class. In terms of legal capacity, the Court points out that an unincorporated association does not have to capacity to sue or be sued, unless legislation specifies otherwise. The Class Proceedings Act (“CPA”) does not create a substantive right to litigate and so a collective that cannot act as an independent plaintiff cannot be made a capable plaintiff through identification and inclusion in a class proceeding. The court confirms that a Band registered under the Indian Act does have legal capacity, but is not necessarily the proper entity to assert an Aboriginal right. The Court declines to decide in general whether an Aboriginal collective has legal capacity, but does hold that in this case, the “aboriginal collectives” designated as class members do not have legal capacity.

With respect to the objectivity criteria, the Court points out that in an Aboriginal rights claim the identity of the rights holder is integral to the analysis. In this case, this identity is also integral to part of the class definition. The chambers judge identified several Bands to be included in the class based on ethnographic material and the Court points out that performing this sort of in-depth analysis to identify class members conflicts with the CPA goals of judicial economy and access to justice. This Court cites the chambers judge's analysis and reasons as proof that the class definition does not provide clear and objective criteria. Furthermore, the circularity in defining members of the class as those who have the right to fish in an action which will partly determine the question of their right to fish would further complicate the matter.

Link to Decision

Kiran Arora

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