Canada: First Nations Not Barred From Bringing Claims Against Private Parties Based On Harm To Unproven Aboriginal Rights, Title And Treaty Rights

Last Updated: October 30 2015
Article by Julie Abouchar

The Supreme Court of Canada will not hear appeals of British Columbia and Quebec Court of Appeal decisions allowing First Nations to proceed in lawsuits against private companies based on impacts to asserted Aboriginal rights, title or treaty rights.

On October 15, 2015, the Supreme Court of Canada dismissed Rio Tinto Alcan Inc.'s ("Rio Tinto") application for leave to appeal the British Columbia Court of Appeal ("BCCA") decision in Saik'uz First Nation v Rio Tinto Alcan Inc. ("Saik'uz").1 On the same day, the Supreme Court of Canada also dismissed Iron Ore Canada's ("IOC") application for leave to appeal the Quebec Court of Appeal ("QCCA") decision in Innus of Uashat Mak Mani-Utenam v. Iron Ore Co. of Canada (Uashaunnuat (Innus de Uashat et de Mani-Utenam) c. Cie minière IOC inc.).2 Both cases involve First Nations lawsuits against private companies for impacts to asserted (but as yet unproven) Aboriginal rights, title or treaty rights. In both instances, companies were unsuccessful in moving to dismiss lawsuits brought by First Nations at an early stage on the basis that they disclosed no reasonable cause of action.

Although the lawsuits have been allowed to proceed, the First Nations in both instances will still have to prove that the impacted right or rights exist during the course of a lawsuit, in addition to all of the other elements of a cause of action. However, these new Supreme Court of Canada leave to appeal dismissals support the idea that First Nations can take action directly against private parties for harms to rights, title and treaty rights.

Neither of these decisions speculate on the possible success of the First Nations in either of the main actions.

Saik'uz First Nation v Rio Tinto Alcan Inc.

The Saik'uz and Stellat'en First Nations (the "First Nations") brought claims against Rio Tinto in private nuisance, public nuisance, and breach of riparian rights based on interference with Aboriginal title, Aboriginal rights and proprietary interest in reserve lands. The dispute is about alleged downstream impacts from a dam constructed and operated by Rio Tinto. We previously provided a summary and analysis of the Saik'uz decision here: http://www.willmsshier.com/docs/default-source/articles/article---saik-uz-bc-court-of-appeal-allows-tort-claim-against-a-private-party-for-harm-to-asserted-aboriginal-rights.pdf?sfvrsn=4

The BCCA allowed the First Nations to proceed with public and private nuisance claims based on impacts on asserted Aboriginal rights and title. The BCCA held that tort claims based on harm to asserted (but unproven) Aboriginal rights and title should not be struck out as disclosing no reasonable cause of action. The BCCA stated in its reasons that to require Aboriginal people to prove asserted Aboriginal rights and title prior to enforcing their rights would be inconsistent with the principle of equality guaranteed by the Charter of Rights and Freedoms.

Innus of Uashat Mak Mani-Utenam v Iron Ore Co. of Canada

In March, 2013, the Innu First Nations of Uashat Mak Mani-Utenam and Matimekush-Lac John (the "Innu First Nations") commenced legal proceedings against Iron Ore Company of Canada ("IOC"), a subsidiary of Rio Tinto, before the Quebec Superior Court ("QSC"). IOC was unsuccessful in a motion to dismiss the lawsuit and appealed the decision to the Quebec Court of Appeal. Similar to the case in Saik'uz, the question before the Quebec Court of Appeal in this dispute is whether a claim against a private actor on the basis of harm to treaty rights as well as unproven Aboriginal rights and title should be dismissed outright as disclosing no cause of action.

In their lawsuit, the Innu First Nations seek damages in the amount of $900 million against IOC for violations to their Aboriginal title, Aboriginal rights, and treaty rights. The Innu First Nations also seek an injunction against IOC to cease its activities in the Nitassinan territory, the Innu First Nations' traditional territory on the Quebec-Labrador Peninsula. IOC operates a mining megaproject in the Nitassinan territory. The project includes several active and abandoned iron mines, processing and port facilities, a railway and 3 hydroelectric dams.

IOC attempted to deflect its liability in its motion to dismiss the claim by arguing that the Innu First Nations should have sued the Crown, and not the company. IOC argued that the Aboriginal rights and title asserted by the Innu First Nations do not impose any obligations or responsibilities on IOC. IOC argued that the identification of Aboriginal rights falls within the scope of the process of reconciliation and should take place between the Innu First Nations and the Crown.

The QSC denied the motion. The QSC held that the identification of Aboriginal rights as part of reconciliation between the Crown and First Nations should not preclude a First Nations from accessing a judicial process that has a chance of success.

IOC appealed the Superior Court's decision to the QCCA. The QCCA followed the lower court's decision, dismissing IOC's appeal, and allowing the Innu First Nations' proceedings. The lawsuit will now revert to the QSC for trial.

Implications

Advancing claims in tort based on harm to Aboriginal rights and title is somewhat novel in Canadian law.

As we noted in May 2015, this case does not resolve the issue of the significant costs that Aboriginal communities face in proving their rights in court. In British Columbia (Minister of Forests) v Okanangan Indian Band, the Band's counsel estimated that the cost of a full trial came in at $814,010 in 2003. Most Aboriginal communities do not have access to these resources, and so do not have a means of establishing their rights through litigation. Aboriginal communities will also hold the onus of the burden of proof if they seek to establish their rights through civil litigation.

However, this decision represents a shift by giving more options to First Nations, and bringing the actions of private parties into the spotlight. More than ever, this decision emphasizes the necessity of private parties and First Nations to work together to build agreements where a company's actions could adversely affect First Nations.

Footnotes

1 Saik'uz First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154.

2 Uashaunnuat (Innus de Uashat et de Mani-Utenam) c. Cie minière IOC inc., 2015 QCCA 2. 

3 [2003] 3 SCR 371 at para 5. Many Aboriginal rights cases are subsequently appealed, although no estimate of an appeal was provided. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions