On April 15, 2015, the B.C. Court of Appeal decided that it is possible for First Nations to bring tort claims founded on Aboriginal title and rights, prior to those rights being formally recognized by a court declaration or government agreement.
In a commentary by Scott A. Smith, Paul Seaman & Megan Strachan at Gowlings, the decision suggests that private entities could be held liable for impacts to as-yet-unproven Aboriginal title or rights, potentially providing significant leverage for Aboriginal groups while also creating a good deal of legal uncertainty for private entities.
The Saik’uz and Stellat’en First Nations (the “Nechako Nations”) brought an action alleging that the construction and operation of the Kenney Dam is damaging the ecosystem of the Nechako River, which the Nations rely on for a variety of purposes.
The Court held that rights such as Aboriginal title must be regarded as existing prior to formal recognition by a court or agreement with the Crown, and commented that barring an action on the assumption that such rights do not exist would be fundamentally unjust. Accordingly, the Court overturned the decision of the lower court to strike the tort claims on that basis.
The Nechako Nations will be allowed to advance their tort claims, grounded in Aboriginal title and rights, which are yet to be delineated by a court declaration or agreement, at trial.
The original article is at http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3962&lang=0.