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.
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
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
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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