Court Rules First Nations May Assert Unrecognized Rights and Titles in Private Litigation

Totem pole BC.

The British Columbia Court of Appeal has allowed an appeal in the case of Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., (2015 BCCA 154) overturning the chambers judge’s decision to strike a portion of the claim.

The Appellants are the Saik’uz and Stellat’en First Nations.  Their pleadings allege that the Kenny Dam, built and operated by the Respondents (Rio Tinto Alcan) since 1958, is a nuisance and impaired the Appellants’ riparian rights.  These claims are grounded in the Aboriginal rights and title asserted by the Appellants in their Notice of Civil Claim. The Appellants alleged that the dam had a detrimental impact on the health of the river and thus harmed their Aboriginal interests.  The Respondent’s defence was based on statutory authority granted by the Provincial government when the dam was created and expanded in the 1950s and 60s.  In a filed reply, the Appellants challenged the constitutionality of the statutory authority because the legislation relied upon diminished or extinguished Aboriginal and/or proprietary rights.

The Respondent brought an application seeking to have the claim summarily dismissed or, in the alternative, have the claim struck out pursuant to Supreme Court Rule 9-5.  The chambers judge dismissed the summary judgement application but granted the order to strike on the basis that the Aboriginal rights and title asserted had not been recognized by the Crown or any court and therefore the claim had no reasonable chance of success. The Appellants appealed that decision and the Respondent cross-appealed the dismissal of their summary judgment application.

The Court of Appeal reviewed the jurisprudence on applications to strike and reiterated that a claim should only be struck if it does not disclose a reasonable cause of action even when the pleaded facts are assumed to be true.  Novel but arguable claims should not be struck. In reviewing the Notice of Civil Claim the Court found that the Appellants pleaded adequate facts which, if proven true, would demonstrate Aboriginal title or rights.  Therefore, the Court found that the chambers judge erred in concluding that the claim did not have a reasonable chance of succeeding.

Interestingly, the Court went one step further by noting that requiring Aboriginal rights or title to be proved before being asserted in private litigation would create an inequality between Aboriginal and non-Aboriginal litigants. The law has long held that Aboriginal rights and title exist prior to and independent of recognition by governments or courts.  The Court held that Aboriginal litigants should not first have to prove their rights before they assert them, an extra hurdle not placed before other litigants. At paragraph 68 the Court wrote: “Setting a separate standard for Aboriginal people before they can sue other parties in order to enforce their rights is not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms.”  The cross-appeal by the Respondents was dismissed.

As this case demonstrates, Aboriginal rights and title continue to be significant issues for both First Nations and industry.  In order to stay current in this dynamic area of law, readers should attend PBLI’s upcoming program “Aboriginal Law 2015: Current Issues” on May 26th and 27th Register by April 25th to take advantage of early bird pricing for both in person and webinar.

 

To view all upcoming PBLI programs click here.

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Posted on July 03, 2020  |  Comments (0)


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