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Saik’uz and Stellat’en First Nations successful in appeal against Rio Tinto Alcan Inc.

April 15, 2015

Ratcliff lawyers Greg McDade and Melinda Skeels succeeded at the BC Court of Appeal in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, a decision that will allow the Saik’uz and Stellat’en First Nations to continue their claim in nuisance and breach of riparian rights against Rio Tinto Alcan in respect of the Kenney Dam and Alcan Reservoir. The First Nations have aboriginal title along the Nechako River downstream of the dam.

In the action the plaintiffs claim that Alcan’s operations of its dam and reservoir and the diversion of water from the Nechako River since the 1950s are causing significant impacts to Nechako fisheries and harming their aboriginal interests.  They claim on constitutional grounds that the 1987 and 1997 Settlement Agreements entered into between Alcan and the governments of BC and Canada cannot be valid defenses against the First Nations’ claims.  The Court of Appeal agreed in its April 15, 2015 decision these are valid arguments for the First Nations to advance in Court.

In reaching its decision, the court rejected Alcan’s argument that First Nations have to prove their interests against the Crown before bringing a claim against a third party. Writing for a unanimous court, Justice Tysoe held: “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. 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.”

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