The Court of Appeal for British Columbia (BCCA) has ruled in favour of the Saik’uz First Nation and Stellat’en First Nation in their case for nuisance and breach of riparian rights against Rio Tinto Alcan Inc (Rio Tinto). In Saik’uz First nation and Stellat’en First Nation v Rio Tinto Alcan Inc., the BCCA confirmed that, among other things, First Nations can bring actions against private parties based on Aboriginal rights and title claims that have not yet been proven.
Rio Tinto had built a dam on the Nechako River in northwestern British Columbia. The plaintiffs, who were each an Aboriginal First Nation and a “band” within the meaning of the Indian Act, alleged that this dam had adversely impacted their fisheries resources. They claimed that they had used and exclusively occupied an area of land that included the bed and banks of the Nechako River since British sovereignty was asserted over British Columbia in 1846, and that they therefore had aboriginal title over this area. The plaintiffs based their claims on private nuisance, public nuisance, and riparian rights.
The Supreme Court of British Columbia (BCSC) had previously dismissed the plaintiffs’ action on the basis that their pleadings disclosed no reasonable cause of action. The judge noted that the plaintiffs’ key problem was that the claim was against Rio Tinto, rather than the Crown, and that the Crown was the only party who could properly defend an action claiming Aboriginal rights or title. It followed that the plaintiffs could not bring an action against a private party that was based on a breach of Aboriginal rights or title unless these rights were already proven by way of a previous action against the Crown.
The BCCA overruled this BCSC decision. The court held that it has been well established Aboriginal rights exist prior to a court declaration or Crown acceptance, which merely identify the exact nature and extent of these rights. Accordingly, there is no reason to require a First Nation to first obtain a court declaration in an action against the Crown before they can begin an action against a private party for relief in reliance on their Aboriginal rights.
Although claims for breach of Aboriginal rights and title are typically brought against the Crown, the BCCA decision in this case indicates that First Nations are not limited to doing so. The BCCA has clarified that First Nations plaintiffs in these cases are allowed to prove the existence of those rights upon which their claims are based, just as a litigant in any other context would be.
Post by: Jesse Bonner
Citation: Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154 (CanLII), <http://canlii.ca/t/gh6c7> retrieved on 2015-05-28