SUPREME COURT OF BRITISH COLUMBIA

Cit at ion: Te Kiapilanoq v. British Columbia, 2008 BCSC 54 Dat e: 20080114 Docket : S036483 Regist ry: Vancouver

Bet ween: Te Kiapilanoq (Capilano) also known as Gerald Johnston, suing on his own behalf as a Squamish Indian Hereditary Chief and person and on behalf of all Squamish Indian People Plaint if f s And Her Majesty the Queen in Right of the Province of British Columbia and the Attorney General of Canada Def endant s

Bef ore: T he Honourable Mr. Just ice Parret t

Reasons f or Judgment
In Chambers Counsel f or t he Plaint if f : Counsel f or t he Applicant Squamish Nat ion, Squamish Indian Band and Chief Gilbert Jacob: Counsel f or t he At t orney General of Canada:: Counsel f or Her Majest y t he Queen in Right of t he Province of Brit ish Columbia: Chief Johnst on, In Person and G. Kapelus J.R. Rich and K.D. Lee J. L. Ot t and S. Eust ace M. Akey
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Dat e and Place of Hearing:

April 21, June 29 and November 14, 2006; April 24, May 17 and June 28, 2007 Vancouver, B.C.

INT RODUCT ION [1] T he present applicat ion is brought by not ice of mot ion by t he Chief and Council of t he Squamish Nat ion and Squamish Indian Band, and Chief Gilbert Jacob, on his own behalf and on behalf of all members of t he Squamish Nat ion and Squamish Indian Band. [2] In t heir not ice of mot ion t he applicant s seek t o be added as def endant s in t his act ion pursuant t o Rule 15(5) and t o have t he act ion st ruck. [3] In t he alt ernat ive t he applicant s seek t o have t he represent at ive act ion of t he plaint if f on behalf of t he Squamish Indian People st ruck and t he st yle of cause in t his proceeding amended so t hat t he name of t he plaint if f appears in his individual capacit y only. BACKGROUND [4] When t his applicat ion f irst came bef ore me t he plaint if f was unrepresent ed. As mat t ers progressed Mr. Kapelus t ook on t he role of represent ing t he plaint if f . As t his mat t er event ually moved t owards complet ion t here were delays occasioned by healt h problems on t he part of Mr. Kapelus and t he plaint if f , an applicat ion t o call viva voce evidence, and f inally delays in t he preparat ion and delivery of mat erial. [5] In essence, t his is a relat ively st raight f orward applicat ion, predicat ed on t he submission by t he applicant s t hat t he plaint if f in t his act ion has no aut horit y t o act on behalf of t he Squamish Nat ion and it s members and t hat he is, in all t he circumst ances, not a suit able person t o bring t his t ype of represent at ive act ion. [6] T he present act ion was commenced on December 2, 2003 and is brought on his own behalf as a Squamish Indian Heredit ary Chief and person on behalf of all Squamish Indian people. [7] A second similar act ion was commenced under act ion number S036521 on December 4, 2003. T his act ion was commenced by t he duly elect ed Council of t he Squamish Nat ion on behalf of t he Squamish Indian Band. [8] T he relief sought in bot h act ions is subst ant ially similar, cent ered around a claim f or declarat ion of aboriginal t it le and right s in respect of what is claimed t o be t he Squamish Nat ions t radit ional t errit ory. T he def endant s are, in each case, t he government s of Brit ish Columbia and Canada. [9] T he plaint if f , Gerald Johnst on, is a Squamish Nat ion member but he is not an elect ed member of t he Council. He assert s a claim t o be a Heredit ary Chief but t hat claim is it self disput ed. A BRIEF HIST ORICAL PERSPECT IVE
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[10] T he Crown Colony on t he mainland of what is now Brit ish Columbia was est ablished in 1858. It merged wit h t he Crown Colony of Vancouver Island in 1866. In 1871 Brit ish Columbia joined conf ederat ion wit h t he f ederal government assuming responsibilit y f or all mat t ers involving Indians and any reserves t hat had been est ablished by t he Colonial government s of Brit ish Columbia. [11] T he f irst Indian Act came int o f orce in 1876. T hat same year, t he Joint Indian Reserve Commission (JIRC) was est ablished under t he Indian Act . During t he course of t his Commissions work 28 reserves were est ablished f or Squamish Indian people. From 1876 unt il 1923 t he Depart ment of Indian Af f airs of t he Canadian Government administ ered each of t hese reserves including a separat e bank account f or each reserve. [12] Bet ween April of 1922 and July of 1923 t here were a series of six meet ings of Squamish people at which vot es were t aken and pet it ions signed. T he last of t hose meet ings t ook place on July 17, 1923 and t he handwrit t en minut es of t hat meet ing were t aken by Indian Agent C.C. Perry. T hese minut es record t he passage of a unanimous resolut ion dealing wit h amalgamat ion and t he creat ion of a Council of Chief s. [13] By a pet it ion dat ed July 23, 1923, and signed by 16 Squamish Chief s and 72 ot her Squamish Indians, t he signat ors advised, in part , t hat : Wit h a view of properly conduct ing t he af f airs of t he Squamish Indians we have unanimously agreed t o have a council t o t ransact t he af f airs of our people in co-operat ion wit h t he Indian Depart ment , said council t o be composed of all t he chief s of t he Squamish Nat ion of Indians, and we may say t hat said council has met wit h approval of every chief of t he Squamish Indians and t he people. [14] In a let t er dat ed July 31, 1923, Indian Agent C.C. Perry advised t hat : T he f ormat ion of a Council of Chief s was also approved, t he st anding chief s t o be const it ut ed as a Squamish Council unt il f urt her arrangement s are agreed upon. [15] From 1923 unt il 1981, t he Council f or t he Squamish Nat ion was comprised of t he 16 Heredit ary Chief s or t heir designat es. No elect ions t o council t ook place during t his period f rom t he membership-at -large. [16] In 1985, as a result of t he passage of Bill C-31, t he new provisions of t he Indian Act allowed Bands t o est ablish t heir own membership codes. In 1987, as a result of a Council init iat ive, a Squamish Membership Code was adopt ed and a second Code was adopt ed and implement ed t o replace it in July 2000. [17] As of February 13, 2006, t he membership records f or t he Squamish Nat ion list 3,362 members, 2,255 of whom are adult s who are eligible t o vot e in elect ions f or t he posit ions of Chief and Councillors. [18] Since 1981 t he Squamish Nat ion elect s 16 council members t o represent t hem.

DISCUSSION [19] T he Rules specif ically deal wit h cases involving mult iple claims and part ies and R. 5(11) wit h represent at ive claims. It reads: (11) Where numerous persons have t he same int erest in a proceeding, ot her t han a proceeding ref erred t o in subrule (17), t he proceeding may be commenced and, unless t he court ot herwise orders, cont inued by or against one or more of t hem as represent ing all or as represent ing one or more of t hem. Under t his provision t he court has a discret ion as t o whet her or not a represent at ive act ion should be cont inued (McLellan v. I.C.B.C. (1981), 32
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Under t his provision t he court has a discret ion as t o whet her or not a represent at ive act ion should be cont inued (McLellan v. I.C.B.C. (1981), 32 B.C.L.R. 154 (B.C.C.A.)). [20] T he provisions of R. 19(24) also allow t he court t o st rike out or amend t he whole or part of a pleading: (24) At any st age of a proceeding t he court may order t o be st ruck out or amended t he whole or any part of an endorsement , pleading, pet it ion or ot her document on t he ground t hat (a) (b) (c) (d) it discloses no reasonable claim or def ence as t he case may be, it is unnecessary, scandalous, f rivolous or vexat ious, it may prejudice, embarrass or delay t he f air t rial or hearing or t he proceeding, or it is ot herwise an abuse of t he process of t he court ,

and t he court may grant judgment or order t he proceeding t o be st ayed or dismissed and may order t he cost s of t he applicat ion t o be paid as special cost s. [21] T he applicant submit s t hat t he present act ion is unnecessary, f rivolous and or vexat ious and t hat it is ot herwise an abuse of t he process of t he court as well as duplicat ing t he claims brought in t he act ion commenced by t he elect ed Chief and Council. [22] T he plaint if f , Gerald Johnst on, f iled a number of af f idavit s, including t hose of Chief Russell Kwakseest ahla, Debbie Sheree Pet erson, Chief Richard Douglas Bill, as well as a second af f idavit of his own. Meaning no disrespect t o any of t hese individuals t he cont ent s of t hese af f idavit s would be usef ul if t his applicat ion required a det erminat ion of whet her or not t he plaint if f is in f act a Heredit ary Chief of t he Squamish Nat ion. Wit h respect , t hat is not t he issue bef ore t he court on t he present applicat ion. [23] T he class ident if ied wit hin t he present act ion only has meaning if it co-exist s wit h t he present st ruct ure of t he Squamish Nat ion. [24] T his group has, according t o t he legislat ion, adopt ed a Membership Code and an elect ed Council t o represent t hese people in t heir af f airs. [25] In my respect f ul view, t he elect ed Council represent ing t he Squamish Nat ion is t he proper part y wit h t he aut horit y of t his def ined class of people t o conduct a case which is aimed at det ermining t he quest ions of Aboriginal right s and t it le. T he collect ive nat ure of t hese right s requires an aut horit y f rom t he people who are, in t his case, collect ively represent ed by t heir elect ed Council. [26] T here is no evidence in t he plaint if f s mat erial t hat he has t he resources or a plan capable of properly conduct ing such lit igat ion; indeed, t he absence of legal counsel t hroughout t he present applicat ion needlessly complicat ed t hat process and could pot ent ially jeopardize t he right s of all t hose in t he class he claims t o represent . [27] Even more signif icant ly, in my view, t he plaint if f has not assert ed aut horit y arising f rom t he class of people t hemselves, ot her t han his assert ion t hat he is in f act a Heredit ary Chief . [28] In Metlakatla Indian Band v. Leighton, [2006] B.C.J. No. 349, Sat anove J. f ound t hat t he act ion bef ore her arising f rom t he alleged misappropriat ion of Band asset s and f unds could not be pursued by an individual Band member in a represent at ive capacit y. [29] T his conclusion f lows f rom t he decisions in Joe v. Findlay (1987), 12 B.C.L.R. (2d) 166; Wewayakai Indian Band v. Chickite , [1998] B.C.J. N0. 860; and Mack v. Mack , [1994] B.C.J. No. 1000. [30] T he issue of aut horit y t o bring an act ion is generally considered t o be a quest ion of mixed f act and law which t he Supreme Court of
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[30] T he issue of aut horit y t o bring an act ion is generally considered t o be a quest ion of mixed f act and law which t he Supreme Court of Canada has held t o be best det ermined by t he t rial judge (Oregon Jack Creek Indian Band v. Canadian National Railway Co., [1989] 2 S.C.R. 1069). [31] T his, however, is a case where t wo act ions have been commenced, bot h of which assert issues of Aboriginal t it le and right s, and t he aut horit y of t he plaint if f in t his act ion is quest ioned. [32] In my view, t he dif f icult ies and uncert aint ies arising f rom t he exist ence of t wo such act ions cannot be allowed t o impact t he orderly assert ion of t he right s in quest ion. [33] In Western Canadian Shopping Centres Inc. v. Dutton , [2001] 2 S.C.R. 534, t he Supreme Court of Canada considered t he condit ions t hat must be met t o allow a represent at ive act ion t o proceed. [34] At para. 34 Chief Just ice McLachlin said: Absent comprehensive legislat ion, t he court s must f ill t he void under t heir inherent power t o set t le t he rules of pract ice and procedure as t o disput es brought bef ore t hem. However desirable comprehensive legislat ion or class act ion pract ice may be, if such legislat ion has not been enact ed, t he court s must det ermine t he availabilit y of t he class act ion pract ice. [35] While Brit ish Columbia has enact ed such legislat ion in t he f orm of t he Class Proceedings Act , R.S.B.C. 1996, c. 50 and amendment s t heret o, t he opt ion remains t o proceed under R. 5(11). [36] T he f our condit ions t hat must be met are f ound in Dutton t o be: 1) 2) 3) 4) [37] t he class must be capable of clear def init ion; t here must be issues of f act or law common t o all class members; success f or one class member must mean success f or all; and t he class represent at ive must adequat ely represent t he class.

In describing t he f ourt h condit ion t he Chief Just ice, at para. 41, said t he f ollowing: . . . In assessing whet her t he proposed represent at ive is adequat e, t he court may look at t he mot ivat ion of t he represent at ive, t he compet ence of t he represent at ives counsel, and t he capacit y of t he represent at ive t o bear any cost s t hat may be incurred by t he represent at ive in part icular (as opposed t o by counsel or by t he class members generally). T he proposed represent at ive need not be t ypical of t he class, nor t he best possible represent at ive. T he court should be sat isf ied, however, t hat t he proposed represent at ive will vigorously and capably prosecut e t he int erest s of t he class . . .

[38] In my respect f ul view, t he plaint if f lacks t he capacit y t o be an adequat e represent at ive f or t he Squamish people in advancing t his represent at ive claim even if he had t he aut horit y t o t ake t his act ion on t heir behalf . [39] Allowing t his act ion t o proceed as a represent at ive act ion would jeopardize t he very act ion brought on t he Squamish Nat ions behalf t o advance t heir claims t hrough t heir elect ed Council. [40] I am not persuaded t hat t he plaint if f necessarily has no cause of act ion beyond t he represent at ive claim, but , t here is no doubt t hat t he pleadings must be subst ant ially recast t o ref lect t he claims he wishes t o advance in his individual capacit y.
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DISPOSIT ION [41] T here will be an order t hat t he applicant s, t he Chief s and Council of t he Squamish Nat ion and Squamish Indian Band, and Chief Gilbert Jacob on his own behalf and on behalf of all members of t he Squamish Nat ion and Squamish Indian Band, be added as def endant s in t his act ion pursuant t o R. 15(5) of t he Rules of Court . [42] T here will also be an order t hat t he represent at ive act ion of t he plaint if f on behalf of all Squamish Indian people be st ruck and an order t hat t he st yle of cause in t his proceeding and t he st at ement of claim be amended t o ref lect t hat t he plaint if f s claim is being advanced in his individual capacit y only. [43] If t he part ies are unable t o agree on cost s, t hey may be spoken t o.

T he Honourable Mr. Just ice Parret t January 21, 2008 Revised Judgment Corrigendum t o t he Reasons f or Judgment issued advising t hat it has been brought t o my at t ent ion t hat counsels names and t he part ies t hey represent are in error on page one of my released reasons. Ms. Ot t and Ms. Eust ace represent ed t he At t orney General of Canada on t his mat t er, and Mr. Akey was counsel f or Her Majest y t he Queen in Right of t he Province of Brit ish Columbia. T hose changes are not ed and applied.

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