SCC Denial of Leave Allows First Nations to Pursue Claims Prior to Proving Aboriginal Title

Written By Alison J. Gray

The First Nations in both cases sought injunctions and damages against mining companies for interference with Aboriginal title and rights prior to Aboriginal title being proven or acknowledged by the Crown. The mining companies brought applications to dismiss the claims on the grounds that no reasonable cause of action exists until Aboriginal title and rights are proven. The courts of appeal denied the companies' applications.

Saik'uz (BC)

The Nechako Nations commenced an action against Alcan, claiming private and public nuisance and breach of riparian rights due to Alcan's operation of the Kenney Dam on the Nechako River. The First Nations sought interlocutory and permanent injunctions to restrain Alcan from committing nuisance and interfering with their riparian rights, as well as damages in the alternative.

The First Nations' claims are grounded in Aboriginal rights and title, claiming that they used and exclusively occupied specific sites along the Nechako River for fishing purposes. It is alleged that the Kenney Dam has significant adverse effects on the fisheries resources of the Nechako River.

The main issue on appeal was whether the chambers judge correctly struck the claim. The Court of Appeal held that it was not plain and obvious that the claims of private and public nuisance and breach of riparian rights, based on the claims of Aboriginal rights and title, disclosed no reasonable cause of action, and restored the First Nations' action.

Uashaunnuat (Quebec)

Iron Ore Company of Canada operates a mine, port facilities and a railway on the North Shore of Quebec and in Labrador. The Uashaunnuat brought a claim against Iron Ore for $900 million in damages, a declaratory judgment recognizing their rights and a permanent injunction to end Iron Ore's operations.

Iron Ore brought an application to dismiss the claim, arguing that the Uashaunnuat had to prove their claimed Aboriginal title and rights prior to bringing the civil claim. The trial judge dismissed the application because there was no clear and obvious lack of legal basis for the claim.

The Quebec Court of Appeal denied Iron Ore leave to appeal the trial judge's decision, finding that Iron Ore did not show that Uashaunnuat's pursuit of the claim would cause Iron Ore irreparable harm.

Implications

These decisions allow First Nations to pursue claims of adverse impacts to Aboriginal title as against private parties prior to actually proving title. That being said, title would have to be proven by the First Nations as a part of such a claim, which can be a very lengthy process. Further, the BC Court of Appeal acknowledged that those not a party to the litigation would not be bound by the result, which would suggest that the Crown should be added as a party in these claims. Now that the Supreme Court has decided not to hear appeals from Saik'uz and Uashaunnuat, it is likely that more claims by First Nations seeking relief from private parties will be pursued in the future.

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