Abstract: In the class actions context, Aboriginal rights and Indigenous issues have largely been considered from an individualistic perspective. Indeed, the use of class actions to address violations of collective rights has only been afforded cursory consideration. This paper argues that the class action framework can expand to accommodate collectives seeking remedies for violations of collective rights, constructing a collective class action framework. Three existing mechanisms of the class action framework can be used to ensure collective class actions are efficient, effective, and constructive. First, the potential opt-in configuration of class actions can acknowledge the diversity and autonomy of Indigenous peoples in Canada. Second, the class of collectives can establish an internal governance structure that can assume the role of representative plaintiff. And third, in no-cost regimes, the protection from costs is invaluable to Indigenous litigants, many of whom have finite financial resources. In jurisdictions that allow an award of costs in class proceedings, judges can, and should, use their public interest discretion to not award costs.
Alexis Giannelia (Thu,) studied this question.