B.C. First Nations may sue an industry  

Decision confirms B.C. First Nations can sue over property rights.

The Supreme Court of Canada has allowed Stellat’en and Saik’uz First Nations to proceed with a lawsuit against Rio Tinto Alcan (RTA).

This decision now confirms that, in B.C., First Nations may sue an industry or private company for damaging lands or interfering with their use and occupancy of lands and rivers even without proving Aboriginal title.

Stellat’en Chief Archie Patrick said this is a significant victory and a step forward for First Nations.

“Rio Tinto Alcan had claimed immunity authorizing them to willfully continue to damage our lands until we proved Aboriginal title,” he said. “We’re pleased that the court recognized that such rights are under Canada’s constitution ‘existing’ and that we have rights to access the courts just as much as non-First Nation landowners.”

In September 2011, Saik’uz and Stellat’en First Nations filed an action in B.C. Supreme Court claiming that RTA’s operation of the Kenney Dam harmed the Nechako River and their fisheries – through diverting water, changing water flows and temperature, eroding the banks, and generally interfering with the ecological system.

Jackie Thomas, former Chief of the Saik’uz First Nation, said RTA has been destroying the Nechako River and damaging their fishery since the 1950’s.

“This is one of the largest environmentally damaging projects in B.C. history, and First Nations’ interests were never considered nor were we ever consulted,” he said. “We’re pleased to finally have a victory in front of Canadian courts.”

According to the law firm Mandell Pinder LLP, Rio Tinto Alcan claimed that the Nations’ Aboriginal title and rights were merely asserted and not proven and therefore too tenuous on which to base their claim. Justice Cohen of the B.C. Supreme Court agreed with RTA.

However, the two Nations appealed and won. In April 2015, the B.C. Court of Appeal ruled that the B.C. Supreme Court was wrong to have decided that the Nations could only bring their claims once their Aboriginal title and rights were proven in court or acknowledged by the Crown. And on Oct. 15, 2015, the Supreme Court of Canada dismissed RTA’s application for leave to appeal.

Kevin Dobbin, RTA’s Spokesperson, said the company “acknowledges the Supreme Court’s decision,” but declined to further comment.

“Rio Tinto strives to engage with Aboriginal communities where it operates, but as these matters are still before the courts we will decline further comments at this time,” he said.

Mike Robertson, Senior Policy Advisor for Cheslatta Carrier Nation, said the Supreme Court’s decision may have an impact on water management strategies in the upper Nechako River.

Cheslatta has been involved in high level discussions with both the province and RTA to find a long-term solution to water management issues in their territory.