In a ground-breaking decision, the British Columbia Court of Appeal has said that Aboriginal groups may sue private parties for impacts to asserted Aboriginal rights and title without first having to prove those rights.
The Saik’uz and Stellat’en First Nations (the “Nechako Nations”) have lived on and around the Nechako River since long before contact with Europeans. They are Carrier First Nations, which in their language literally means “people who go by boat.” They claim aboriginal rights and title to the Nechako River and its banks as well as other property interests.
Rio Tinto Alcan (“Alcan”) built the Kenney Dam on the Nechako River, which diverts a significant amount of the River’s flow out of the watershed. The Nechako Nations maintain that the Dam has caused significant environmental effects that threaten fisheries among other things.
The Nechako Nations are suing Alcan for interference with their property rights in the Nechako River. They are asking the court for an injunction to prevent Alcan from continuing to interfere with these rights and for damages.
Alcan brought a motion to dismiss the Nechako Nations’ claim. The company advanced a number of arguments, including that since the Nechako Nations could not argue that Alcan had interfered with their property rights in the Nechako River because they had not yet proved their aboriginal rights and title claims. The Court held that First Nations can sue on the basis of asserted (rather than proven) aboriginal rights and title. The Court reasoned that like any other litigant, First Nations should have the opportunity to prove their rights exist at trial. Requiring proof of aboriginal rights and title before a claim could be started would impose an unfair burden on Aboriginal peoples.
The decision is significant in that it may open up new opportunities for First Nations to address harms to their lands and waters, and to obtain remedies such as injunctions and damages. For a claims to succeed, however, First Nations must still prove the aboriginal rights or title (or other property rights) that for the basis of the claim. This can be very expensive and time consuming.
The decision could also lead to an increase in litigation involving First Nations and non-government (i.e. industry) parties. A major outstanding question is: what role will the Crown play in these cases? When can or should the Crown be brought into a proceeding, and how? If a lawsuit between a First Nation and a private party leads to a finding of aboriginal rights or title, what effect will it have on negotiations and future litigation with the Crown?
The Nechako Nations have now established that they may pursue their case against Alcan; it will be very interesting to see how this case plays out.