Aboriginal Law @ Gowlings - July 28, 2011

Edited by by Maxime Faille, Cynthia Westaway and François Dandonneau

Sinixt First Nation Unsuccessful in Injunction Against Logging in Ancestral Territory Due to Lack of Standing

Campbell v. British Columbia (Forest and Range), 2011 BCSC 448

http://www.canlii.org/en

On February 25, 2011, the Supreme Court of British Columbia refused to grant an order to cancel a timber sale license. The petition was launched by the Sngaytskstx ("Sinixt") First Nation seeking to stop the granting of the license by the Crown on their alleged ancestral lands, claiming ancestry to the Lakes Indians who once occupied the territory.

On October 5, 2010, the timber sale license was granted to Sunshine Logging Ltd. by the Province of British Columbia, permitting the harvesting of Crown timber from within four designated cut blocks on Perry Ridge within the Lakes Indian territory. The license also permitted Sunshine to construct, maintain, and use roads in the area.

On November 4, 2010, a petition was filed to quash the licence on the grounds that the Crown had failed to consult before issuing the licence. Relying on the Supreme Court of Canada decision of Haida Nation v. British Columbia (Minister of Forests), the First Nation sought an interim injunction restraining the Respondent from acting on the license.

The main issue in this petition, however, pertained to the ability of Sinixt to bring the case before the court (standing). The first issue was whether or not the petitioners could sufficiently define the contemporary rights-bearing collective for whom they purported to act, that is, the Sinixt people. A second issue was whether or not the petitioners had authority to act as representatives of that community.

In response to the first issue, the court determined that while the Crown does have an obligation to Aboriginal collectives to consult even on unproven claims or by unrecognized bands, there must be a defined collective based on objective criteria. The court looked to the history of the Sinixt and the contemporary Sinixt population and concluded that the petitioners did not meet this criterion. The evidence indicated that the closest descendants of the Lakes Indians in the territory were found on the Colville Reservation in Washington State. Numbers ranged from 1000-3200 for those living in the United States and who are not Canadian Citizens nor registered Indians under the Indian Act. Up to 3000 members purported to live in Canada as part of other Bands. This included those in the Okanagan Nation Alliance, or those who are not registered at all. The petitioners represent a group of only 300, and the Court held that they have no objective criteria for determining ancestry or criteria for membership.

On the second issue, the Court did not accept that the Petitioners had the requisite standing to represent the Sinixt collective. The Court found that the Petitioners represent only a subset of purported Sinixt people, and there are objections to their representatives by other Sinixt leaders. In order for the claim to succeed, the collective in its entirety must be able to benefit from a judgment in their favour.

B.C...