No. S090848
Vancouver Registry
In the Supreme Court of British Columbia
Between:
CHIEF ROBERT CHAMBERLIN,
Chief of the Kwicksutaineuk/Ah-Kwa-Mish First Nation,
on his own behalf and on behalf of all members of the
KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION
Plaintiff
And:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE
OF BRITISH COLUMBIA and the MINISTER OF
AGRICULTURE AND LANDS
Defendant
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996. c. 50
TO:
The Defendants and their Solicitors
TAKE NOTICE that an application will be made by the Plaintiff to the
Honourable Mr. Justice Sladc at the Courthouse at 800 Smithe Street. Vancouver, British
Columbia, at a date and time to be set for an order that:
1.
This action be certified as a class proceeding;
2.
The class be described as all members of the First Nations who have or assert
constitutionally protected aboriginal and/or treaty rights to fish wild salmon for
sustenance, food, social, and ceremonial purposes within the Broughton Archipelago (the
"Class Members") or such other class definition as the court may ultimately decide on the
motion for certification. The boundaries of the Broughton Archipelago are set out on the
map attached as Schedule "A" to the Statement of Claim:
3.
The Plaintiff Chief Robert Chamberlin be appointed representative plaintiff for the Class
Members;
(07038-OOP.000277.J9.DOC.]
4.
The common issues set out in Schedule "A" to this Notice of Motion, be certified as
common issues of fact or law;
5.
At a time and in a form to be directed by the Court, notice of certification be given to the
Class Members in the fonn set out in Schedule "B" to this Notice of Motion and in
accordance with the Litigation Plan that is set out in Schedule 4kC" to this Notice of
Motion (the "Litigation Plan");
6.
This class proceeding be conducted in accordance with the Litigation Plan set out in
Schedule "C", as amended from time to time and approved by this Honourable Court;
and
7.
Such further and other orders as this Honourable Court may deem just.
The applicant will rely on the Class Proceedings Act, R.S.B.C. 1996, c. 50.
At the hearing of the application, the applicant will rely on the following
affidavits and other documents:
(a)
the Affidavit of Chief Robert Chamberlin sworn April 30, 2009;
(b)
the Affidavit of Lise Carmichael sworn May 5, 2009;
(c)
the Affidavit of Dr. Fred Whoriskey sworn May 5, 2009;
(d)
the pleadings and proceedings filed herein;
(e)
such further and other material as counsel may advise.
The applicant estimates that the application will take 3 days.
If you wish to receive notice of the time and date of the hearing or to respond to
the application, you must, within the proper time for response.
(a) deliver to the applicant
(i)
2 copies of a response in Form 124, and
(ii)
2 copies ofeach ofthe affidavits and other documents, not already in the
court file, on which you intent to rely at the hearing, and
(b) deliver to every other party of record
(i)
one copy of a response in Form 124, and
|()70.18-00l\(XX)277.1lJ.DOC.)
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(ii)
one copy of each affidavit and other document, not already in the court
file, on which you intend to rely at the hearing.
TIME FOR RESPONSE
If the application is for a final judgment under Rule 18A, the response must be
delivered on or before the 11th day after the delivery to you of the notice of motion.
In all other cases, the response must be delivered on or before the 8th day after the
later of
(a)
(b)
the last date fixed for entry of appearance by you, and
the date on which the notice of motion was delivered to you.
Dated: (A^V<.
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Camp
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Counsel for the Plaintiff
I07038-00I\00027749.DOC)
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SCHEDULE "A'
COMMON ISSUES
The following defined terms referred to helow are set out in the Statement of Claim: Wild
Salmon, Salmon Farms, Fishing Rights and Broughton Archipelago
1.
To what extent are the Wild Salmon populations in the Broughton Archipelago in
decline?
2.
To what extent has the Province of British Columbia (the "Province") purported to
authorize and regulate the Salmon Farms under the Land Act, R.S.B.C. 1996, c. 245 and
ihc Fisheries Act, R.S.B.C. 1996, c. 149?
3.
To what extent, if at all, did the Province have the constitutional authority to authorize
and/or regulate the Salmon Farms in the manner that it did?
4.
Has the manner in which the Province purported to authorize and regulate the Salmon
Farms:
(a)
failed to prevent or adequately manage the concentration of parasites, including
sea lice, at the Salmon Farms and the transmission of these parasites from the
Salmon Farms to the Wild Salmon;
(b)
failed to prevent or adequately manage the concentration of infectious diseases at
the Salmon Farms and the transmission of these infectious diseases from the
Salmon Farms to the Wild Salmon;
(c)
allowed the fanning of non-indigenous Atlantic salmon species at the Salmon
Farms and failed to prevent or adequately manage escapes of Atlantic salmon
from the Salmon Farms that compete with the Wild Salmon for habitat and food;
(d)
permitted the Salmon Farms to be located in areas that encounter significant runs
of Wild Salmon, particularly as vulnerable juvenile Wild Salmon;
(e)
permitted Salmon Farms to operate without requiring fallowing in a manner that
effectively protects Wild Salmon during critical periods when Wild Salmon
stocks, particularly juvenile Wild Salmon, are known to be passing in close
proximity to Salmon Farms;
(f)
permitted Salmon Farms that allow the transmission of parasites and disease to
Wild Salmon by the use of permeable cages causing free flow of contaminated
water and waste between the Salmon Farms and the marine environment; and
(g)
made other decisions about, among other things, the location of the farms, size of
the farms, concentration of the non-indigenous salmon permitted in the farms, the
application of pest and disease treatments and the timing of harvesting operations,
which have significant negative impacts on the populations of Wild Salmon?
(07038-00!\000278()I.DOC)07038-001\0065
5.
To what extent have the actions or omissions of the Province caused or materially
contributed to the decline of the Wild Salmon populations in the Broughton Archipelago?
6.
Did the Province have knowledge, real or constructive, of the existence or potential
existence of any Fishing Rights within the Broughton Archipelago?
7.
Did the Province contemplate, or ought the Province have contemplated, that any Fishing
Rights within the Broughton Archipelago could be affected by the manner in which the
Province authorized and regulated the Salmon Farms?
8.
9.
Are Section 11(2) of the Land Act and Sections 13(5) and 14(2) of the Fisheries Act of no
force and effect because they purport to confer on the Minister of Land and Agriculture
the discretion to authorize salmon aquaculture and this discretion is not structured to
accommodate any Fishing Rights?
Are the Class Members entitled to an award of aggregate damages and, if so, in what
amount?
10.
Are the Class Members entitled to an injunction prohibiting the Province from renewing,
or replacing the Salmon Farm permits and/or issuing new permits for additional salmon
aquaculture sites to operate in the Broughton Archipelago?
11.
Are the Class Members entitled to a mandatory injunction requiring the Province to
remediate the impact of the Salmon Farms in the Broughton Archipelago by restoring
Wild Salmon stocks and habitat to the position that they would have been in but for the
actions or inactions of the Province?
12.
Are the Class Members entitled to an order that the relief granted be implemented under
the continuing supervision and jurisdiction of the Court?
{070.18-001\00027SOI.DOC.)07038-001\0065
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SCHEDULE"B"
NOTICE TO ALL FIRST NATION GROUPS LOCATED WITHIN THE BROUGHTON
ARCHIPELAGO REGARDING THE CLASS ACTION LAWSUIT RELATING TO THE
IMPACT OF SALMON AQUACULTURE ON CONSTITUTIONALLY PROTECTED
FISHING RIGHTS
No. S090S48
Vancouver Registry
In the Supreme Court of British Columbia
Between:
CHIEF ROBERT CHAMBERLIN,
Chief of the Kwicksutaincuk/Ah-Kwa-Mish First Nation,
on his own behalf and on behalf of all members of the
KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION
Plaintiff
And:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE
OF BRITISH COLUMBIA and the MINISTER OF
AGRICULTURE AND LANDS
Defendant
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50
THE CLASS ACTION
This notice is directed at all members of First Nation groups who have or assert constitutionally
protected aboriginal and/or treaty rights to fish wild salmon for sustenance, food, social and
ceremonial purposes ("Fishing Rights") within the Broughton Archipelago (the "Class
Members"). The boundaries of the Broughton Archipelago are set out on the map attached as
Appendix "A" to this Notice.
A class action lawsuit (the "Class Action") is pending in British Columbia Supreme Court
alleging that the manner in which Her Majesty the Queen in Right of the Province of British
Columbia has authorized and regulated salmon aquaculture has caused a serious and material
decline in the wild salmon slock in the Broughton Archipelago, and as a result, has infringed and
continues to infringe the Class Members' Fishing Rights in violation of s. 35 of the Constitution
Act, 1982.
The class action has two stages. The first stage is the resolution of the common issues. The
common issues in this action include questions such as, whether the wild salmon population in
the Broughton Archipelago is in decline and whether the manner in which the Province has
authorized or regulated the salmon aquaculture sites in the Broughton Archipelago has caused or
materially contributed to this decline. A full list of the common issues is available from Class
(070.18-OOl\0OO27768.DOC.) 07038-001X0063
Counsel. If the common issues are resolved in favour of the class, the court will determine the
steps Class Members will need to take to establish their rights and determine if they are entitled
to recover damages, and in what amount.
It is strongly recommended that you contact the lawyers for the Class Members, Camp Fiorante
Matthews, or obtain independent legal advice before responding to this notice.
THE CERTIFICATION ORDER
On
, the British Columbia Supreme Court certified the action as a class proceeding
and appointed Chief Robert Chamberlin as the representative Plaintiff.
If you are Class Member, your rights will be affected.
WHAT TO DO IF YOU ARE A CLASS MEMBER?
If you are a British Columbia resident and do not wish to participate in the Class Action you
must take action to exclude yourself by opting out of the Class Action. If you do not opt out of
the Class Action, you will be automatically included in the Class Action and bound by the terms
of any judgment or settlement of the common issues in the Class Action, whether favourable or
not. If the Class Action is successful, you may be entitled to recover damages for the
infringement or loss of your ability to exercise a constitutionally protected right to fish wild
salmon for sustenance, food, social and ceremonial purposes (if you chose to prove or assert that
right).
If you wish to opt out of the Class Action you must do so on or before
by sending a
written election signed by the Class Member stating that you are opting out of the Class Action
to Camp Fiorante Matthews, Attention: Salmon Farming Class Action:
•
by pre-paid mail or courier to: Camp Fiorante Matthews, 4th Floor, 555 West Georgia
Street, Vancouver, BC V6B 1Z6;
•
by fax to: 604-689-7554;
•
or by email to: [email protected].
No Class member will be permitted to opt out of the Class Action after
.
If you opt out, you will not be entitled to share in any recovery or take the benefit of any ruling
in this case, but you will be free to bring your own claim if you wish.
LEGAL FEES AND DISBURSEMENTS
Counsel have entered into an agreement with the representative plaintiff with respect to legal
fees and disbursements referable to the Class Action. The fee agreement with the representative
plaintiff must be approved by the court to be effective.
I07038-00I\00027768.DOC 107038-001\0063
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Class Members will not be personally liable to pay any further fees or disbursements to Class
Counsel unless and until they enter into a separate fee agreement with Class Counsel pertaining
to their own individual rights and recovery, if that is required to achieve a recovery.
ADDITIONAL INFORMATION
Any questions about the matters in this notice should NOT bedirected to the court because its
administrative structure is not designed to address this type of inquiry. Any questions or
concerns should be directed to Class Counsel or an independent lawyer of your own choosing.
The certification order and other information may be obtained by visiting the website at
www.efmlawyers.ea.
Questions for Class Counsel should be directed by email, fax or telephone to:
Lise Carmichael, Paralegal
Camp Fiorante Matthews, 4th Floor, 555 West
Georgia Street, Vancouver, BC V6B 1Z6
Phone: 604-689-7555
Fax: 604-689-7554;
Email: [email protected].
INTERPRETATION
This notice is a summary of the terms of the certification order. If there is any conflict between
the provisions of this notice and the terms of the certification order, the certification order shall
prevail. The certification order may be reviewed at the website www.cfmlawyers.ca.
{07038-OOI\0OO27768.DOC.}07038-001\0063
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SCHEDULE"C"
No. S090848
Vancouver Registry
In the Supreme Court of British Columbia
Between:
CHIEF ROBERT CHAMBERLIN,
Chief of the K\vicksutaineuk/Ah-K\va-Mish First Nation.
on his own behalf and on behalf of all members of the
KWICKSUTAINEUK/AH-KWA-MISH FIRST NATION
Plaintiff
And:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE
OF BRITISH COLUMBIA and the MINISTER OF
AGRICULTURE AND LANDS
Defendant
BROUGHT UNDER THE CLASS PROCEEDINGS ACT, R.S.B.C. 1996, c. 50
LITIGATION PLAN
1.
This litigation plan assumes that this court will rule in favour of certification.
Notification of Certification
2.
The Plaintiff proposes Uiat notification of certification and the opt out date and
means of opting out, in the form of notice appended as Schedule "B" to the Notice of Motion, be
approved by the Court and advertised to the class by the following means:
(a)
a notice be sent by registered mail to the Chiefs of all First Nations located
within the Broughton Archipelago (as denoted on the map attached as
Schedule "A" to the Statement of Claim) whose names and addresses are
known to the Plaintiff or the Defendant;
(b)
Class Counsel will follow up with a phone call to each of the above Chiefs
whose names and phone numbers are known to the Plaintiff or the
Defendant; and
(07038-(M)1\00027700.DOC)()7038-0))1\0()59
(c)
3.
a notice be posted on the following websites: www.cfmlawycrs.ca.
Subject to the results of the proposed notice plan, the Plaintiff may seek directions
from the Court with respect to alternative means of advertising the notice to ensure the notice is
as complete as reasonably possible.
Opt Out Date
4.
The Plaintiff proposes that the opt out date be set 60 days after the date of the last
mailing of the notice to the class members or the completion of any alternative notice under
paragraph 3, above, whichever is later.
Procedural, Interlocutory and Trial Matters
Post-Certification Case Management Conference
5.
The Plaintiff proposes that a further case management conference be held within
30 days of the certification decision to address the following issues:
(a)
order - Finalize the terms of the certification order and notice plan;
(b)
pleadings - ensure that pleadings arc closed, that all contemplated
amendments have been concluded and that all parties have been joined;
and
(c)
identification and simplification of issues - ensure that the common
issues have been simplified and narrowed as much as possible.
Production of Documents
6.
The Plaintiff proposes that Lists of Documents be exchanged on the common
issues within 60 days of the post-certification case management conference.
7.
The Plaintiff anticipates that the documentary productions may be voluminous
and proposes that counsel for the parties should meet following certification to discuss ways to
efficiently disclose documents to one another utilizing computer database software so that, as
much as possible, documents may be produced and shared between the panics and made
available to the Court in electronic format.
(0703S-001\00027700.DOC]()7038.001\0059
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8.
In the absence of a voluntary agreement between the parties with respect to the
production of documents following class certification, the Plaintiff will apply to this Honourable
Court for an order specifying the procedures for electronic documentary productions.
Examinations for Discovery
9.
The Plaintiff proposes that the initial examinations for discovery of all parties on
the common issues be completed within 90 days after list of documents have been exchanged.
10.
The Plaintiff further proposes that all undertakings arising out of the examinations
for discovery be concluded within 30 days after each examination for discovery is completed
following which the examining party shall conduct any follow up discovery within 60 days.
Post Discovery Conference
11.
The Plaintiff proposes that a case management conference be held following the
completion of the discovery in order to address the following issues:
(a)
refinement of the common issues for trial including, if necessary, the
addition or deletion of common issues.
Experts and Expert Evidence
12.
The Plaintiff anticipates that he will call a number of scientific experts.
13.
The Plaintiff proposes that the expert reports relating to any issue on which a
party has the onus of proof be served on the other parties within 90 days after the examinations
for discovery have been concluded (the "Primary Reports"). The Plaintiff proposes that all
responding reports be delivered within 60 days of the deadline for filing the Primary Reports.
Trial
14.
The Plaintiff proposes that the trial of the common issues be set for a period of
and commence 90 days after the last expert reports have been served.
{07038-001\00027700.DOC.)07038-00l\0O59
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4
15.
The Plaintiff anticipates that the trial of this action will commence in
Further Case Management Conferences
16.
The Plaintiff proposes that further case management conferences be scheduled as
often as required throughout the course of this litigation.
Individual Issues
17.
The Plaintiff proposes that individual issues, if any, be assessed after the common
issues have been resolved.
18.
The Plaintiff anticipates a further case management conference in order to
determine the most efficient and least expensive method of determining individual issues.
Potential methods include mini-trials, arbitrations, representative trials or other means set out in
s.27 of the Class Proceedings Act, which will depend on the nature of the issues that remain.
Further, to the extent that discovery is required for the individual issues the Plaintiff will rely on
s. 27(3) which allows the court to dispense with any procedural step that it considers
unnecessary, and authorize any special procedural steps, including steps relating to discovery,
and any special rules, including rules relating to admission of evidence and means of proof, that
it considers appropriate.
{07038-(>01\(XX)27700.DOC.)07038-001\0059
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