Economic Development in Jeopardy? Implications of the Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Decision – by Ravina Bains (Fraser Institute Research Bulletin – November 17, 2015)

https://www.fraserinstitute.org/

Summary

  • The Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto BC Court of Appeal decision opens the door for future aboriginal title litigation against private parties—litigation that was previously only brought against provincial and federal governments.
  • Following the BC Court of Appeal decision, First Nations no longer have to prove aboriginal title before bringing damages claims against private parties, such as resource companies. Simply claiming aboriginal title is enough to bring forward litigation against private parties.
  • In provinces like British Columbia where over 100% of the province is currently under claim, this puts all current and future economic development projects in jeopardy.
  • Specifically, this judgment could put the Kitimat aluminum smelter and the Kenney Dam, which has been operating for over 60 years with the support of Haisla First Nation, in jeopardy.
  • Just as the Tsilhqot’in decision resulted in increased litigation against the Crown, this judgement will now result in litigation against private parties regarding aboriginal title, which prior to this case was unprecedented.

Introduction

In 2014 I wrote about how the Supreme Court’s historic Tsilhqot’in decision was going to be a game changer for economic development projects and aboriginal title cases in British Columbia (Bains, 2014). A year later, another historic decision, that the Supreme Court of Canada declined to hear, will not only affect the economic prosperity of British Columbia, but is also likely to affect the rights of private parties.

In its ground-breaking decision of October 15, 2015, the Supreme Court of Canada upheld an April 2015 BC Court of Appeal decision that will allow Saik’uz First Nation and Stellat’en First Nation (henceforth known as the Nechako Nations) to bring forward a damages claim against Rio Tinto for the Kenney Dam, which has been operating for over 60 years in British Columbia.

The First Nations will be able to bring forward an action for damages against the private company without having proven aboriginal title.

The BC Court of Appeal found that simply claiming aboriginal title is sufficient to allow a claim against a private party to proceed to trial. This research bulletin provides background on the case and outlines the implications of the decision.

For the entire report, click here: https://www.fraserinstitute.org/sites/default/files/economic-development-projects-in-jeopardy.pdf

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