On Wednesday April 15, 2015, the BC Court of Appeal released its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc. In its decision, the court allowed the claims of the plaintiffs Saik'uz First Nation and Stellat'en First Nation (Saik'uz and Stellat'en) to proceed despite the fact that they are, in part, based upon unproven assertions of Aboriginal title. This precedent-setting decision could make litigation more attractive to First Nations unsatisfied with the results of consultation and accommodation.
Rio Tinto Alcan Inc. (Alcan) operates the Kenney Dam, located near the geographic centre of British Columbia, to power Alcan's aluminum smelter near Kitimat, BC. In 2011, Saik'uz and Stellat'en commenced an action against Alcan alleging the company's operation of the dam created a nuisance and breached the First Nations' riparian rights within an area over which they claimed Aboriginal title. Neither Saik'uz nor Stellat'en holds a treaty and neither First Nation has proven aboriginal title. In response, Alcan sought an order to, among other things, have the court strike out the First Nations' notice of civil claim.
Lower Court Decision
A notice of civil claim can only be struck out "if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable prospect of success."1 The chambers judge found that an action based on unproven Aboriginal title claims did not give the First Nations' sufficient connection to the lands in question to support their claims and therefore they had no reasonable chance of succeeding.2 As a result, the chambers judge struck the claim. Saik'uz and Stellat'en appealed the decision.
BC Court of Appeal Decision
In a unanimous judgment, penned by Mr. Justice Tysoe, the BC Court of Appeal found that the mere fact that Aboriginal title had not been proven did not mean that the First Nations' civil claim was doomed to failure. In allowing Saik'uz and Stellat'en's appeal, the court held that:
- In Canada, Aboriginal title exists prior to it being declared or recognized;
- The facts pleaded by Saik'uz and Stellat'en, if proven to be true, would support a claim of Aboriginal title to the lands in question;
- The fact that the Crown was not a party to the action did not bar Saik'uz and Stellat'en from attempting to prove "the rights that are required to be proved in order to succeed in the claim"3;
- Forcing First Nation litigants to seek a declaration of title prior to being able to bring a claim based on that title, rather than requiring them to prove that title in the course of their civil claim, would disadvantage them relative to other litigants;
- It is arguable that legislation purporting to reserve water rights to the Crown did not extinguish Aboriginal rights held by First Nations prior to the enactment of the Water Privileges Act, 18924; and
- Assuming title exists as pleaded, it is not plain and obvious that Saik'uz and Stellat'en have "no reasonable chance" of proving their claims in nuisance and interference with riparian rights.
The Court of Appeal also indicated that the corporate defendants might not be able to rely on the fact they had statutory authority to undertake the actions complained of if the statute relied on is unconstitutional or does not apply to Aboriginal title lands.
Conclusion
As a result of the appellate decision, a First Nation in British Columbia could potentially bring a claim based on unproven Aboriginal title and prove title as a part of making its civil case.
Neither the Saik'uz First Nation nor the Stellat'en First Nation has yet proven title and neither of them has yet been successful in their claim against Alcan. Alcan has 60 days from the date of this decision to seek leave to appeal to the Supreme Court of Canada.
The true significance of this ruling may only be known in the future as proponents consider the development of large infrastructure projects across the province.
1 R. v. Imperial Tobacco Canada
Ltd., 2011 SCC 42 at para. 17.
2 Alcan at para. 32.
3 Ibid. at para. 66.
4 Ibid. at para. 59.
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