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ABORIGINAL STATUS AND RIGHTS - Practice and procedure - Parties - Standing

Tuesday, April 25, 2017 @ 8:37 AM  


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Application by the defendant, the federal Crown, for an order that the plaintiff, the Hwlitsum First Nation (HFN), lacked standing to bring a representative action. The plaintiffs sued several defendants seeking billions of dollars in compensation based on declarations of Aboriginal title and rights in respect of its traditional village sites and territories. The plaintiffs alleged that the HFN was the modern continuation or successor of the Lamalcha Tribe based on ancestral lineage and genealogical evidence. The Lamalcha, Penelakut and Yonkulahs were amalgamated in approximately 1877 by the Indian Reserve Commission as the Penelakut Indian Band. The defendants denied that the HFN were synonymous with the Lamalcha and alleged they lacked standing to bring a representative proceeding. The Crown, with the support of the other defendants, submitted that the action was an abuse of process and should be struck.

HELD: Application allowed. The collective rights asserted by the plaintiffs on behalf of the HFN as alleged descendants of the Lamalcha Tribe of Indians required the existence of an identifiable group capable of advancing a claim under s. 35 of the Constitution Act, 1982. The Crown established that it was plain and obvious, based on the class or collective definition selected by the plaintiffs, that the HFN lacked standing to advance the communal rights at issue. The proposed class or collective was inherently conflicted, and could not be defined in a manner that permitted membership to be determined by objective criteria. Ancestry alone was insufficient to establish that a modern collective had a claim to the rights of a historic group. It was not possible to construct a First Nation from one family, and then assert Aboriginal title claims. The representative proceedings were bound to fail and were accordingly dismissed. It was unnecessary to address the Crown's abuse of process argument.

Hwlitsum First Nation v. Canada (Attorney General), [2017] B.C.J. No. 566, British Columbia Supreme Court, P. Abrioux J., March 24, 2017. TLD-Apr242017006