A decision released last week, KwicksutaineukAh-Kwa-Mish First Nation v. British Columbia, provides an interesting look at the process for certification of a class action when there are small, numerous, aboriginal collectives involved.
The decision wrestles with the need to identify certain classes within an intricately woven intermixing of Aboriginals from one band to another over many years. In doing so, it necessarily distinguishes between historical terms that have been used to define Indian collectives in Canada – (e.g., “nations,” “First Nations,” “Tribes,” and “Bands.”). It also compares historical Aboriginal orthography and Anglicized rendering.
Ultimately, the court found in favor of the Aboriginals and certified the proceeding as a class action.
If the commonly used descriptor “First Nations” is to have any meaning in the context of a discussion of aboriginal rights, it must, in my opinion, refer to an aboriginal collective that can fairly assert itself as having an ancestral connection to an identifiable collective which, historically, engaged in practices that found the basis for the asserted right.
Turtle Talk 