The B.C. Supreme Court struck out a claim brought by a group of Sechelt elders on the basis that the plaintiffs lacked standing and the claims had no reasonable prospect of success. The Court held that there was no evidence that the plaintiffs had authority from the Sechelt Nation to bring an Aboriginal rights claim on their behalf. Further, the claims asserted by the plaintiffs were based upon a lack of Crown jurisdiction or sovereignty and therefore contrary to Canadian law.

The dispute centred around a Timber Sales Licence issued by BC Timber Sales to Continental Pole Ltd. in March 2012, which was later assigned to Bell Lumber & Pole Canada. The TSL relates to one cut block of second growth timber. Prior to the issuance of the TSL, BC Timber Sales had consulted with the Sechelt Indian Band. No archaeological sites or cultural materials were found at the site.

The plaintiff David Quinn, also known as :popois, purports to represent a group of Sechelt elders know as shishalh tl’extl’ax-min. This group alleges that they have the authority to assert Aboriginal rights on behalf of all Sechelt people. Further, they allege that the TSL relates to land within territory owned by Sechelt elder Barbara Higgins, also known as Xwu’p’a’lich shishalh tl’extl’ax-min.

Bell Lumber & Pole and its contractor obtained an injunction in May 2012 to prevent the plaintiff Quinn and others from physically interfering with the logging operation. In June 2012, the plaintiffs commenced this proceeding. The Amended Notice of Civil Claim alleges environmental damage to salmon habitat, trespass to shishalh lands, a lack of Crown jurisdiction over unceded Indian land, and that BC Timber Sales should be required to reforest the area.

The Court granted the application of British Columbia for an order under Rule 9-5 that the Amended Notice of Civil Claim be struck.  The Court held that the plaintiffs lacked standing to bring the claims in the Amended Notice of Civil Claim. There was insufficient evidence to show that the plaintiffs were properly authorized to bring the claims in this action.

Aboriginal rights and title are communal rights held by all members of a First Nation, and are not held by individuals. Any claims may only be brought by authorized representatives on behalf of the First Nation. The representatives of the First Nation must be properly mandated by the members in order to have standing, and such authorization must be properly pleaded. Without any clarity on what land is in issue, and due to the lack of evidence about how land is held under traditional Sechelt laws, it was not possible to find that any of the criteria for a representative action had been satisfied in this proceeding. It was not possible to find that the plaintiffs had authority to bring this claim on behalf of the Sechelt Nation. In fact, the evidence before the Court, such as a letter from Chief Garry Feschuk of the Sechelt Indian Band, indicated that the plaintiffs were not authorized. Fisher J. held that it was apparent that there is a dispute internal to the Sechelt Nation as to who are the properly authorized representatives to assert Aboriginal land rights. The evidence showed that there is a debate within the Sechelt Nation about the elders taking back the lands.

The Court further held that the claims have no reasonable prospect of success, as they are not consistent with Canadian law. The plaintiffs allege that the Crown has no jurisdiction over the lands, and assert that the Crown must prove its title or jurisdiction. Delgamuukw established that the burden of proof of aboriginal rights and title lies with the claimant group asserting such rights. Pending resolution of these claims, the Crown has a duty to consult and seek to accommodate Aboriginal interests. The plaintiffs’ claim of trespass also stems from an assertion of title that is tantamount to ownership unless the Crown proves otherwise. Fisher J. held that these pleadings cannot be corrected by way of an amendment, and must be struck.

Due to these findings, it was not necessary for the Court to consider whether the claims constituted a collateral attack on the decision to issue the TSL. Fisher J. further held that she would not have dismissed the action on the basis of mootness (the logging was completed by the end of August 2012) since the plaintiffs had also claimed damages for the trees removed.

The application by British Columbia to strike the whole of the plaintiffs’ claim was therefore granted, with costs. The plaintiffs’ application for injunctive relief and damages to the environment was dismissed.

Decisions available here.


Scott Kerwin


Aboriginal Law