Unprecedented aboriginal title court decision exposes private parties to litigation previously only brought against governments

An unprecedented Supreme Court decision, allowing two B.C. First Nations to file for damages against aluminum industry giant Rio Tinto, could have dire implications for economic development projects across the country, concludes a new study released today by the Fraser Institute, an independent, non-partisan Canadian public policy think-tank.

The study, Economic Development in Jeopardy? Implications of the Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Decision, spotlights the October 2015 Supreme Court decision to uphold a BC Court of Appeal ruling that paves the way for First Nations to file for damages against private parties (ie: companies, individuals or non-government entities) without proving aboriginal title first.

“Simply claiming aboriginal title is now enough to bring forward litigation against private parties — litigation that was previously only brought against provincial and federal governments,” said Ravina Bains, study author and associate director of aboriginal policy studies at the Fraser Institute.

The case involves Rio Tinto’s Kenney Dam which has operated for more than 60 years on the Nechako River in northeastern British Columbia.

The Saik’uz and Stellat’en First Nations, who have not proven aboriginal title to the land in question, claim the dam is causing significant environmental harm to the river and thus negatively affecting their fishing resource.

The Supreme Court upheld the earlier B.C. Court of Appeal ruling that the two First Nations could move forward with the complaint asserting—for the first time—that aboriginal title does not have to be proven before bringing a claim against a private party for damages.

According to the study, the court decision will not only put established projects at risk, but put a chill on new economic development projects and create further uncertainty for First Nations pursuing clarity on aboriginal title.

“Previous claims of aboriginal title have always been brought against the Crown yet this unprecedented ruling exposes private parties to litigation even when, like in Rio Tinto’s case, the private company is operating under provincial government license on land it bought from the government in the 1950s,” Bains said.

“With an increase in litigation, this ruling could put all current and future economic development projects in jeopardy especially in provinces such as British Columbia where more than 100 per cent of the province is currently under claim by First Nations.”

Media Contact: Aanand Radia, Media Relations Specialist, Fraser Institute, (416) 363-6575 Ext. 238, [email protected]itute.org 

The Fraser Institute is an independent Canadian public policy research and educational organization with offices in Vancouver, Calgary, Toronto, and Montreal and ties to a global network of think-tanks in 87 countries. Its mission is to improve the quality of life for Canadians, their families and future generations by studying, measuring and broadly communicating the effects of government policies, entrepreneurship and choice on their well-being. To protect the Institute’s independence, it does not accept grants from governments or contracts for research. Visit www.fraserinstitute.org