Aboriginal title must be given the same rights as any other private landowner, the B.C. Court of Appeal ruled in a historic decision this month.
The ruling stems from a case brought forward by Saik’uz First Nation and Stellat’en First Nation. They claim that Rio Tinto Alcan’s Kenney hydroelectric dam on land they assert aboriginal title over has severely damaged the Nechako River and its fisheries.
"The dam doesn’t operate like normal dams," explained Gregory McDade, attorney for the plaintiffs.
"It diverts the water to an entirely different water system and makes the power that way," he said. "They are taking water permanently out of the river … that’s really adversely affected the river, causing erosion and extinction of certain fish species."
The dam has been in operation since the 1950s and the suit was filed in 2011.
The First Nations’ common law case is claiming nuisance and breach of riparian rights – rights normally granted to all Canadian land owners.
The ruling was on a pretrial motion where Alcan was arguing to get the entire case dismissed because aboriginal land title for the area hasn’t been established in court and it Alcan contended it does not give them the same landowner rights to seek remedy in court.
"Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights," wrote Justice David Tysoe in his decision. "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."
McDade said this is the first time in Canada that that the courts have declared that aboriginal title gives rise to the same common law remedies any private landowner would have and that just because title hasn’t been proven in court doesn’t mean it doesn’t exist.
"I think it adds to the tool box to First Nations," McDade said. "It signals to companies that they have to conduct their operations looking out for First Nations."
The Stellat’en First Nation praised the decision.
"We are pleased that the Court of Appeal recognized that First Nations’ aboriginal title exists, prior to proof in court or treaties with government," Stellat’en Chief Archie Patrick said in a news release.
He said the decision grants aboriginals the same private-law protections as other individual landowners.
"Our peoples are determined to continue to seek justice for our rights and the Nechako River," he said.
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