First Nation bid to close fish farms may reach Canadian Supreme Court
By MICHAEL V'INKIN LEE, Vancouver Sun
August 8, 2012
http://www.vancouversun.com/news/First+Nation+close+fish+farms+reach+Canadian+Supreme+Court/7060492/story.html
The Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN) announced its plan to push
ahead with renewed legal action to protect its territorial wild salmon stocks
from sea lice allegedly caused by nearby salmon farms. A prior attempt at a
class action proceeding was stymied by a legal loophole.
Photograph by: Handout, Marine Harvest Canada
A B.C. First Nation revealed yesterday morning at a press conference that it
seeks to re-launch a class-action lawsuit against the B.C. and federal
governments to ultimately force the closure of commercial open net-pen fish
farms in Broughton Archipelago.
The Kwicksutaineuk/Ah-Kwa-Mish First Nation (KAFN) announced its plan to push
ahead with renewed legal action to protect its territorial wild salmon stocks
from sea lice allegedly caused by nearby salmon farms after a prior attempt at
a class action proceeding was stymied by a legal loophole. KAFN Chief Robert
Chamberlin condemned the provincial and federal governments for jeopardizing
the wild salmon population in B.C. and expressed disappointment in Victoria and
Ottawa for continuing to support the aquaculture industry in spite of the
environmental impacts.
"I am so disappointed in Canada. I'm disappointed in the province of B.C.,"
Chamberlin said. "They've lost sight of the importance of healthy, abundant
wild salmon stocks and what an economic engine it represents for British
Columbia."
A class action proceeding is a form of lawsuit where a group or groups of
people collectively submit a claim to court.
The KAFN seeks three outcomes, according to the group's counsel, Reidar
Mogerman. The KAFN wants a declaration on the exact legal nature of the rights
and titles asserted by the nations, damages for those whose rights were
infringed, and the fishery's rebuilding by those who destroyed it, Mogerman
explained.
"There's nothing more central to the territories of our people than wild
salmon," said Chamberlin. "We have built an incredible culture based on
feasting, based on extracting resources from our waters to provide for our
peoples. And the governments have decided to take a course of action that
completely puts wild salmon at risk."
But before any of that can happen the KAFN must again overcome a legal hurdle
that bars aboriginal groups or "collectives" from joining together in a class
proceeding. An earlier ruling in Dec. 2010 by the Supreme Court of British
Columbia seemingly cleared the path for action, but the decision was
subsequently overturned in May 2012 by the British Columbia Court of Appeal
after the provincial and federal governments appealed the first judgment.
The KAFN revealed at the conference that it has now applied to the Supreme
Court of Canada for leave to appeal the 2012 decision. If leave is granted, the
Supreme Court will consider if the KAFN - and all subsequent aboriginal
"collectives" - will be allowed to file class action proceedings. The final
ruling will take at least a year to reach, Mogerman said. The whole process
could take, at the minimum, two years to conclude, he added.
Chamberlin said the initial focus was just on the wild salmon issue, but the
wording used by the Court of Appeal decision in May demanded the KAFN take a
broader approach on the issue of First Nations rights.
"We looked [at the BC Court of Appeal ruling] and realized that the courts have
taken a backward step [on First Nations rights] and that's not consistent with
what the governments say," he said.
He also suggested that other social, political, and economic issues faced by
First Nations across Canada - like the legacies left by residential schools -
would benefit greatly from being able to file class actions as a more effective
means to pursue legal remedies.
Assembly of First Nations national chief Shawn A-in-chut Atleo praised
Chamberlin and the KAFN for asserting their rights and agreed that expanding
the number of legal options available to First Nations claimants to include
class proceedings would be a move in the right direction.
"While First Nations can pursue claims of aboriginal rights and titles in the
courts, class actions would be far more expedient than requiring each and every
[First Nations person] to file their own individual claim," said Atleo in a
statement.
Although open net-pen fish farms remain the KAFN's focal point in the coming
legal struggles, Mogerman insisted that giving Canada's indigenous nations
access to the same legal tools available to other Canadians is an important
step to correct a historical issue of institutionalized inequality that early
governments created and are still taking advantage of. Greater clarity on the
precise legal status of First Nations is required before the problem can be
corrected, he added.
"The First Nations of this country were historically put in a vague box and
stripped of their rights," said Mogerman. "It's time to put some legal clarity
around the nature of the First Nations so that they can enjoy the same rights
everybody else has."
mvinkin...@vancouversun.com
[Non-text portions of this message have been removed]
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