A legal showdown over open-net fish farming in B.C. is looming with Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN) announcing it will fight for its right to launch a class action lawsuit at the Supreme Court of Canada.
After B.C.’s Court of Appeal ruled on May 3 that Indian Act Bands are forbidden from launching class-action proceedings on behalf of “Aboriginal collectives”– siding with the government – the case has major implications for Aboriginal people.
“What the Court of Appeals decision has done is it effectively said that First Nations ... are second-class procedural citizens,” said Reidar Mogerman, the lawyer for Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN).
“Because where an ordinary Canadian is a person defined by the legislation who can bring forward class proceedings, the court said a First Nation is so special–it’s so hard to figure out who they are–that they can’t be one of the entities that joins in a class to litigate.
“That is a huge issue for First Nations; they need all the procedural tools they can get their hands on.”
In her ruling, Justice Nicole Garson concluded that an “Aboriginal collective” – defined in this lawsuit as all nations impacted by fish farming in B.C.’s Broughton Archipelago –could not sue the government because it is “not necessarily a legal or organized entity” and that therefore the KAFN band “is not necessarily the proper entity to assert an Aboriginal right.”
“There is no evidence that the ‘aboriginal collectives’ who are class members are organized in a way that could confer legal status on them,” Garson ruled, backing the government’s appeal against KAFN’s class-action lawsuit. “The class is comprised of parties that do not have the capacity to sue.”
For KAFN Chief Bob Chamberlin, named the representative plaintiff on behalf of all Indigenous people impacted by fish farms, banning his nation from suing is discrimination against Aboriginal people.
“The issue they take [is] with how we presented ourselves as First Nations to the courts,” said Chamberlin. “I say to Canadians and to British Columbians alike: if our First Nation decides to present itself to anybody, anywhere, under any circumstances, it is our call.
“We are not going to be dictated to by the courts; we are not going to be dictated to by the government about how we organize ourselves. We presented ourselves as we did, as we traditionally did amongst ourselves. For the courts to decide that is not good enough, that it is inappropriate ... that’s wrong.”
For KAFN Hereditary Chief Bobby Joseph, a retired commercial fisherman and traditional harvester, the Crown would commit an injustice if it refuses to certify the lawsuit.
“I’m so afraid that if the Supreme Court doesn’t allow this appeal to open a legal recourse for us it would be a form of judicial violence against a group of people who should be afforded the same opportunity to seek remedy in our courts, like all other citizens,” he told Windspeaker. “We’ve been excluded too long. Now we’re trying to create inclusion.”
Joseph said that, before the arrival of nearly 29 open-net fish farms in the KAFN territories, he and his family caught an abundant supply of wild food from the ocean.
“I’ve watched, right before my eyes, a demise of a lot of the ocean life, a lot of the fish, crab, shrimp, all those species, since the advent of fish farms,” he said.
“We rely so heavily on the salmon–it actually reflects our very souls. I don’t want our communities to die once that resource fades forever.
“It’s so central to our lifestyle, it would be a tragedy to lose it all.”
The lawsuit, which has been working its way through the courts since a judge approved it in December 2010, strives to protect wild salmon stocks from fish farms, which KAFN and environmentalists believe are causing the devastating decline of the species through disease transfer and sea lice.
“We asked to get an answer in court to the question: What impact are salmon farms having on wild salmon?” said Mogerman. “That is a huge scientific question that has been bouncing around for too long. We want someone who has the authority to close it out, and that’s the court.
“The question of salmon farms and their impact on salmon is a system-wide question. It’s a question that runs throughout the province, and it needs a system-wide answer [for] all the nations who are impacted by the fish farms. That way there’s a single answer that is final and binding on government.”
The right to sue as a class will have many ramifications for all First Nations, Mogerman said, citing the Northern Gateway pipeline as a project impacting many bands along its route. Likewise, Chamberlin pointed to child apprehension and residential schools as examples where multiple bands are impacted by government policies.
Garson’s decision is an example, Chamberlin added, of Canada’s history of preventing Indigenous access to the legal system, harkening back to the long-time ban on hiring legal counsel, only overturned in 1951.
“When we have not given up our title, and our opinions about what we want to see happen in our territories are disregarded, I can see that the Doctrine of Discovery is still very much alive in Canada,” Chamberlin said.
“We are still not seen as people to be respected for our opinions of what we wish to see in our areas, our territories, where we’ve been from the beginning of time. (Our) desires for our own territories are being completely, systematically and consistently disregarded by Canada.
“We are not willing to pretend that salmon will bounce back. We are not willing to take a chance with the life-blood of our people.”
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