• Yahaan v. Canada (Attorney General), 2017 FC 725, Federal Court (Barnes J.), 26 July 2017
  • October 11, 2017 | Author: Scott Kerwin
  • Law Firm: Borden Ladner Gervais LLP - Vancouver Office
  • The Federal Court dismissed a judicial review application brought by a dissident member of the Coast Tsimshian Nation on the basis that he does not have standing to bring a representative proceeding.

    The applicant Yahaan purports to be the Head Chief (sm’oogit) of the Gitwilgyoots, one of the nine tribes that constitute the Coast Tsimshian Nation in northwestern British Columbia. Two Indian bands – the Lax Kw’alaams and the Metlakatla – have consistently represented the section 35 interests of the Coast Tsimshian Nation in dealings with the Crown, including consultations relating to the Pacific Northwest LNG Project planned near Prince Rupert. The current leadership of the Lax Kw’alaams and the Metlakatla, along with a clear majority of the Coast Tsimshian people, supported the LNG project on certain conditions. Yahaan and his supporters objected to the project and, over the objections of the Bands, occupied Lelu Island (the proposed site of the project).

    Yahaan commenced this judicial review proceeding to challenge various environmental assessment decisions and approvals for the project. He purported to bring the application on behalf of the Gitwilgyoots Tribe. The Metlakatla and the Lax Kw’alaams applied to strike the application on the basis that Yahaan did not have the necessary standing to act in a representative capacity.

    The Court allowed the motions, and struck out the judicial review application. Rule 114 of the Federal Court Rules sets out the conditions for a person acting in a representative capacity, and Yahaan had the onus of proving that he met such criteria. The Court was not convinced that Yahaan was the sm’oogit of the Gitwilgyoots Tribe, as there was a challenge to this leadership claim by another individual. When there is a leadership dispute, a bare assertion of authority is legally insufficient for a representative claim. Further, there was a lack of evidence that Yahaan had been authorized by members of the Tribe to bring the proceeding on their behalf. The evidence actually indicated that Yahaan was opposed by a substantial number of Gitwilgyoots members. Barnes J. commented:

    Yahaan’s representative claim involves a certain degree of irony if not disingenuity. On the one hand, he complains about ostensible deficiencies in the actual internal consultations carried on between the two Bands and the leaders of the nine tribes (including himself); but on the other hand, he purports to speak on behalf of the Gitwilgyoots without engaging in any consultation with members of the tribe. Indeed, he purports to act contrary to the views of a substantial number of those members. His position is also inconsistent with the outcome of a poll of Lax Kw’Alaams members (which included members of the Gitwilgyoots) who voted in favour of continuing consultations between the Bands and the Crown.

    The Court held that Yahaan’s failure to ascertain the level of support that he carried among members of the Tribe disqualifies him from purporting to act on their behalf. Barnes J. also held that Yahaan’s position was similar to the application in Komoyue Heritage Society v. British Columbia, 2006 BCSC 1517, in that this matter involved a dissident member seeking an ex post facto veto over the actions of the Band. The Court was not satisfied that Yahaan could fairly and adequately represent the members of the Tribe.

    The Court noted that these proceedings are an unfortunate consequence of an internal governance dispute within the Coast Tsimshian Nation. In this motion, the Lax Kw’alaams sought a determination that the two Bands have the legal right to consult exclusively with the Crown on behalf of the Coast Tsimshian. Barnes J. was not willing to make such a finding without a much more comprehensive evidentiary record. He also held that he would not resolve the dispute over leadership of the Gitwilgyoots Tribe, as that is currently an internal matter and it would be premature for the Court to intervene.

    The judicial review application was therefore dismissed on the basis that the applicant lacks the necessary standing to bring it in a representative capacity.