On July 10, 2018, in Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276, the British Columbia Court of Appeal (the “Court”) dismissed an appeal brought by the Hwlitsum First Nation (the “HFN”) to advance a representative action claiming Aboriginal title and rights. The HFN’s claims were based on an assertion that the HFN is the modern day continuation of the historic pre-colonization Lamalcha Tribe (the “Lamalcha”). The Court upheld the chambers judge’s decision that the HFN lacked standing to bring claims of Aboriginal title and rights because the group the HFN purported to represent is not determinable by stated objective criteria.
The HFN filed a representative action seeking declaration of Aboriginal title and rights over the lower mainland of British Columbia, southern Vancouver Island, the Gulf Islands and lands and waters related to those areas. The HFN asserted that its members are the modern descendants of the Lamalcha, and as such, are the heirs of all the Aboriginal rights and title of the Lamalcha. The HFN also sought damages of $1 billion from each of Canada and the Province of British Columbia.
Three First Nations whose traditional territories were affected by the HFN’s claims applied to be added as defendants: the Tsawwassen First Nation, the Penelakut Tribe, and the Musqueam Indian Band. In particular, the Penelakut Tribe disputed that the HFN are the heirs of the Lamalcha’s Aboriginal rights, as it also alleged to be descended from the Lamalcha and had commenced an action in 2003 claiming Aboriginal rights and title to the land held by the Lamalcha prior to first contact.
The defendant Canada, supported by all other defendants, applied to strike the HFN’s claims on the basis that the HFN lacked standing to advance a representative action because the group they purported to represent was not determinable by stated, objective criteria.
The chambers judge applied the criteria from Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (“Western Canadian Shopping Centres”) in determining whether the HFN was an appropriate collective to bring a representative action. The chambers judge dismissed the representative claims because the HFN failed to meet the first Western Canadian Shopping Centres criterion of whether the collective of rights-bearers on behalf of whom they purport to act is capable of clear definition, finding that the HFN took the incompatible positions that they represented all of the descendants of the Lamalcha, while simultaneously claiming that they only represented the descendants of the Lamalcha who were descended from Si’nuscutun, an individual member of the Lamalcha (and narrower still, only those descendants of Si’nuscutun that were also not members of other contemporary bands).
The Court of Appeal’s Decision
The HFN appealed, raising a number of issues which the Court grouped into two main grounds: (1) the chambers judge erred by identifying the wrong legal test for determining the HFN’s standing to represent the descendants of the Lamalcha, and (2) the chambers judge erred in his application of the legal test.
Correct legal test for determining standing
The HFN argued that the chambers judge applied the incorrect legal test because he did not take into account the Guerin and Delgamuukw “functional”, “purposeful”, “flexible and generous” approach when considering the issue of standing. The Court held that the chambers judge correctly applied the Western Canadian Shopping Centrestest, because the Guerin and Delgamuukw approach only applies to the substantive resolution of claims to Aboriginal rights and title, and not to the preliminary question of who has the legal capacity to advance them.
The HFN also argued that the chambers judge applied the wrong test because he did not simply accept the facts pleaded in the amended notice of claim as if they were true, without looking at whether there was evidence to support the facts in the claim. However, the Court found that the jurisprudence dealing with standing does not preclude the use of evidence and that the HFN failed to adduce evidence during several interlocutory proceedings over the course of two years.
Application of the legal test for determining standing
The HFN also submitted that the chambers judge erred in his application of the legal test because he concluded that the definition of the collective provided by the HFN did not meet the first criterion in Western Canadian Shopping Centres, i.e., the chambers judge incorrectly concluded that the collective of rights-bearers on behalf of whom the HFN purported to act was not capable of clear definition. However, the Court found that the HFN put forward inconsistent definitions of the group they purported to represent. Since it is the historic community, and not one of its members, which holds Aboriginal rights, the HFN could not assert rights to Aboriginal title on behalf of the Lamalcha, because they defined themselves as only one branch of the descendants of the Lamalcha, i.e., those Lamalcha who are descendants of Si’nuscutun and who are not members of any other contemporary Aboriginal band.
The BC Court of Appeal confirmed the Western Canadian Shopping Centres test applies in representative claims brought by Indigenous collectives. A key factor in this case appeared to be the fact that other First Nations also purporting to represent members of the same asserted rights-holding collective opposed the position of the HFN. In evaluating claims for Aboriginal rights and title, it is not just overlaps between First Nations, but also competing claims to represent a First Nation, that are relevant to the analysis.