The Saik’uz First Nations were pursuing a nuisance claim against Rio Tinto Alcan but it was struck down on December 13.
An example of a nuisance claim is if there are two neighbours, both owning property, and an animal escapes onto the other neighbour’s property and causes damage to it or affects the enjoyment of the property. The neighbour who was affected can then file a nuisance claim.
The Saik'uz will be appealing the decision and, according to former chief Jackie Thomas, will probably take it to the Supreme Court of Canada.
“It’s a very old common law tort that allows for private remedies between parties,” said Sam Adkins, a lawyer who wrote on the subject of this case. “You need to have an interest in land in order to assert that you have a right that needs protecting.”
The case only made it to preliminary motions, which means it’s not actually a trial just a place to decide whether there is enough evidence to go to trial.
"There were two pieces as to why the claim was struck down," said Adkins.
The first is that Alcan has permits from the government for operation so in that way no nuisance claim can be brought.
The second piece is that Alcan argued that because the band didn't have proven rights on the land, only asserted rights, and that because those were not proven in court or recognized by the government then there wasn't a sufficient interest in the land for the band to bring a claim against Alcan under nuisance.
This is a difficulty that affects many First Nations groups that have asserted but not proven Aboriginal rights to an area. The difficult part for the Saik’uz First Nation, as represented by Jackie Thomas, is in proving their rights to the lands affected by Rio Tinto Alcan.
"This case didn't involve government and the courts are very reluctant in those circumstances," said Adkins. "If you're going to bring a claim of Aboriginal rights and title, in order to prove that you'd have to bring all sorts of evidence and look at things historically and a lot of these claims will take decades to resolve."
"The idea of proceeding with that type of claim with a private party without government involved didn't seem practical for the court. So that was really what was underlying a lot of the uncertainty in the decision."
Is this fair to Aboriginal groups though? That's a difficult question since both interests can be labeled as important, Alcan and the Saik'uz both have interests.
It would be similar to if instead of Rio Tinto Alcan it was a private land owner who has fenced off his land and is raising cattle on it. Should the asserted Aboriginal rights prevail and can they claim damages in that circumstance?
It is a problem for a lot of Aboriginal groups.
When Canada passed the new constitution in 1982, in section 35 it only states that the existing Aboriginal treaty rights are protected. The difficulty has always been that we don't know exactly what those rights are necessarily to the courts have developed tests to figure out how to go abour proving those rights.
"It's a very difficult burden of proof on Aboriginal groups to try and prove a claim," said Adkins. "So the courts have repeatedly tried to resolve these claims through negotiations with government."
The Saik'uz First Nations will continue to work on this as it moves forward.