Canada: Rio Tinto Subs Fail To block Aboriginal Title Damage Claims

With a one-two punch delivered by the Supreme Court of Canada on October 15, 2015 two Tinto subsidiaries, Rio Tinto Alcan and Iron Ore Company of Canada, have failed to block two lawsuits bought by Indigenous groups through preliminary proceedings to dismiss the claims. The Court refused to grant the two companies leave to appeal decisions of the British Columbia Court of Appeal and the Quebec Court of Appeal that keep the door open for two Indigenous groups to bring damage claims against the resource developers.

Thomas (Saik'uz) v. Rio Tinto Alcan Inc.

In Thomas representatives of the Saik'uz and Steallat'en First Nations brought an action for alleged damages arising out of the construction and operation of a hydroelectric dam, authorized by the Government of British Columbia, by Rio Tinto Alcan and its predecessors on the Nechako River since the early 1950s. They sought damages for nuisance and interference with the First Nations' riparian rights (i.e., water rights attaching to land). They also sought an injunction to restrain Rio Tinto Alcan from continuing the interference.

The company made an application for summary judgment, seeking to dismiss the claim at the outset or, in the alternative, to strike out portions of the claim. It argued that it had statutory authority to build and operate the dam, that the First Nations must first prove any Aboriginal Title as against the Crown and that the action was just a backdoor attack on the Crown's approval of the dam. Although the hearing judge did not grant the summary judgment application, he struck out the claims as disclosing no cause of action against the company.

The BC Court of Appeal did not agree. It applied a high threshold for striking the claim, holding that it had to be shown, assuming the facts alleged by the First Nations to be true, that it was plain and obvious that the claim disclosed no reasonable cause of action. The Court decided that there was enough to send the issue of nuisance and interference with riparian rights based on Aboriginal Title to trial, along with the company's defence of statutory authority. The Court also held that it was not necessary for the First Nations to have their claims proven and recognized by the Crown before proceeding with their action.

The Court did note that any ultimate decision in the case could not be binding on the Crown, as it is not a party. It also found in favour of the company on an element of the riparian rights claim associated with Reserve lands, determining that those water rights had been extinguished by legislation.

Iron Ore Company of Canada v. The Uashaunnuat

The Innu of Uashat, Mani-Uteman and Matimekush-Lac John in Northern Quebec brought a $900 Million law suit against the Iron Ore Company of Canada and  the Quebec North Shore and Labrador Railway, claiming infringements of Aboriginal rights and treaty rights as a result of the companies' mining, port and railway activities. They also asked for a permanent injunction closing those operations.

The companies applied to the Superior Court to dismiss the claims. They said that the Innu ought to have named the Crown as a party. They claimed that the aboriginal rights that were not yet recognized or established could not create civil liability on the part of third parties. They further claimed that the action would create an impediment to reconciliation with the Crown.

The Court did not agree. As with the Rio Tinto Alcan decision, the judge had to assume that the facts being alleged to support the claim were true. The judge concluded that, based on those facts,  he could not be certain that the Innu would be unable to prove legal fault on the part of the companies and the damages arising from it. He found there to be a fair issue to be tried. The judge also pointed out that the Crown had been given notice of the claim and that it, through its representatives, considered itself to be a full party to the dispute.

A judge of the Quebec Court of Appeal refused to grant leave to appeal this interim decision of the lower court. She found that allowing the action to proceed would not cause irreparable harm to the companies and that the issues should therefore be decided at a trial. The cost of the proceedings alone was not a sufficient reason to allow a review of the lower court's decision against dismissing the action.

The Supreme Court of Canada

The companies applied to the Supreme Court for leave (effectively, permission) to appeal the Court of Appeal decisions to that court. The Supreme Court denied the leave applications. As is customary, the Court did not give reasons for the denials.

This leaves the defendant corporations as parties to litigation that will certainly take years (if not decades) to wend its way through the court system. It also leaves the plaintiffs with the burden of leading voluminous evidence in order to prove, at least on a balance of probabilities, the factual basis to support their claims, including proof of Aboriginal Title, associated rights and interest, and the damages allegedly suffered. Once the factual foundation is presented and tested at trial, the court will then have to wrestle with the complex legal issues raised by the claims.

The cases open the door for claims based on impacts to Aboriginal Title and treaty rights against private parties, without first having proved these rights as against the Crown. Time will tell as to whether and when those claims and others like them are proven. settled or otherwise disposed of.

This article was originally written for, and published in Mid-Canada Forestry and Mining magazine.

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
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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