Canada: Saik'uz First Nation And Stellat'en First Nation V. Rio Tinto Alcan Inc., 2015 BCCA 154

Saik'uz First Nation And Stellat'en First Nation V. Rio Tinto Alcan Inc., 2015 BCCA 154

This important decision from the British Columbia Court of Appeal makes it possible for an Aboriginal claimant to advance a private law claim on the basis of asserted, but unproven, Aboriginal title or rights.¹

Saik'uz and Stellat'en First Nations brought an action in nuisance and breach of riparian rights against Rio Tinto Alcan based on Alcan's operation of the Kenney Dam across the Nechako River in northwestern B.C. The First Nations alleged that their asserted (but not proven) Aboriginal rights and title were sufficient to ground the claims.

The B.C. Supreme Court struck the claims on the basis that they could not be supported by unproven Aboriginal title and rights,² but the Court of Appeal overturned that order. The Court held that a claim based on asserted Aboriginal rights and title disclosed a reasonable prospect of success. The Court noted that to hold otherwise would put Aboriginal litigants at an unfair disadvantage contrary to the principle of equality under the Charter. While most of the alleged claims were permitted to proceed, the Court upheld the striking of the First Nations claim for breach of riparian rights to the extent that those rights were alleged to arise from an interest in reserve lands.

Footnotes

1. Rio Tinto's application for leave to appeal to the Supreme Court of Canada was dismissed: 2015 CanLII 66255.

2. The BC Supreme Court's decision was reported in Mining in the Courts, Vol. IV.

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