The Supreme Court of Canada recently denied applications for
leave to appeal in Saik'uz First Nation and
Stellat'en First Nation v Rio Tinto Alcan Inc., 2015 BCCA
154 (Saik'uz), and Iron Ore Company of
Canada. v Uashaunnuat, 2015 QCCA 2 (Uashaunnuat).
The First Nations in both cases sought injunctions and damages
against mining companies for interference with Aboriginal title and
rights prior to Aboriginal title being proven or acknowledged by
the Crown. The mining companies brought applications to dismiss the
claims on the grounds that no reasonable cause of action exists
until Aboriginal title and rights are proven. The courts of appeal
denied the companies' applications.
The Nechako Nations commenced an action against Alcan, claiming
private and public nuisance and breach of riparian rights due to
Alcan's operation of the Kenney Dam on the Nechako River. The
First Nations sought interlocutory and permanent injunctions to
restrain Alcan from committing nuisance and interfering with their
riparian rights, as well as damages in the alternative.
The First Nations' claims are grounded in Aboriginal rights
and title, claiming that they used and exclusively occupied
specific sites along the Nechako River for fishing purposes. It is
alleged that the Kenney Dam has significant adverse effects on the
fisheries resources of the Nechako River.
The main issue on appeal was whether the chambers judge
correctly struck the claim. The Court of Appeal held that it was
not plain and obvious that the claims of private and public
nuisance and breach of riparian rights, based on the claims of
Aboriginal rights and title, disclosed no reasonable cause of
action, and restored the First Nations' action.
Iron Ore Company of Canada operates a mine, port facilities and
a railway on the North Shore of Quebec and in Labrador. The
Uashaunnuat brought a claim against Iron Ore for $900 million in
damages, a declaratory judgment recognizing their rights and a
permanent injunction to end Iron Ore's operations.
Iron Ore brought an application to dismiss the claim, arguing
that the Uashaunnuat had to prove their claimed Aboriginal title
and rights prior to bringing the civil claim. The trial judge
dismissed the application because there was no clear and obvious
lack of legal basis for the claim.
The Quebec Court of Appeal denied Iron Ore leave to appeal the
trial judge's decision, finding that Iron Ore did not show that
Uashaunnuat's pursuit of the claim would cause Iron Ore
These decisions allow First Nations to pursue claims of adverse
impacts to Aboriginal title as against private parties prior to
actually proving title. That being said, title would have to be
proven by the First Nations as a part of such a claim, which can be
a very lengthy process. Further, the BC Court of Appeal
acknowledged that those not a party to the litigation would not be
bound by the result, which would suggest that the Crown should be
added as a party in these claims. Now that the Supreme Court has
decided not to hear appeals from Saik'uz and
Uashaunnuat, it is likely that more claims by First
Nations seeking relief from private parties will be pursued in the
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