On November 15, 2012, the Supreme Court of Canada denied leave to appeal to Chief Robert Chamberlin, Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation regarding a BC Court of Appeal decision, which denied certification of a class action based on Aboriginal rights. The BC Court of Appeal had overturned a BC Supreme Court decision certifying a class action regarding a claim for damages and declaratory relief associated with impacts on Aboriginal Rights from the regulation of aquaculture in the Broughton Archipelago. In Kwicksutaineuk/Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193, the BC Court of Appeal allowed the appeal holding that the BC Class Proceedings Act cannot be used to pursue these collective rights.

Andrew Borrell and Kevin O’Callaghan of Fasken Martineau’s Vancouver office acted as counsel for the Intervenor, BC Salmon Farmers Association, on the hearing of the case before the BC Court of Appeal.

It should be emphasized that although this decision stands for the proposition that an Aboriginal collective is not capable on its own of starting an action in the same way as an individual, that does not mean that there is any impediment to bringing claims of Aboriginal rights and title to the Courts. Aboriginal collectives can, and have been encouraged to, use representative actions in which one member of the group stands as the representative plaintiff for the remainder of the group. As a result, there is a process to get these issues before the courts.