On October 15, 2015, the Supreme Court of Canada dismissed applications for leave to appeal Saik'uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154 (“Saik’uz”), and Iron Ore Company of Canada, et al. v. Uashaunnuat (Innus de Uashat et de Maini-Utenam), et al., 2015 QCCA 2 (“Uashaunnuat”).

In both cases, the First Nations sought injunctions and damages against the defendant mining companies for interference with their claimed Aboriginal title and rights prior to Aboriginal title being proven or acknowledged by the Crown. The defendants brought applications to dismiss the claims based on the argument that no reasonable cause of action exists until Aboriginal title and rights were proven. The courts of appeal refused to grant the applications to dismiss.

We will likely see more claims of this nature in the future, in which Aboriginal groups seek relief against private parties. It will likely be in the interests of private parties to add the Crown as a party to the proceedings. By adding the Crown as a party, it can properly respond to the claims of Aboriginal rights and title rather than leaving the response to a private party.

Case Background: Saik'uz (BC)

For more information on the BC Court of Appeal decision in Saik’uz, see our bulletin.

Case Background: Uashaunnuat (Quebec)

Iron Ore Company of Canada (“Iron Ore”) operates a mine, port facilities and a railway on the North Shore of Quebec and in Labrador. The Uashaunnuat brought a claim against Iron Ore for $900 million in damages, a declaratory judgment recognizing their rights and a permanent injunction to stop Iron Ore’s activities.

Iron Ore sought a motion to dismiss the claim, arguing that the Uashaunnuat had to obtain recognition of their claimed Aboriginal title and rights prior to bringing the civil claim against Iron Ore. The trial judge rejected Iron Ore’s motion to dismiss because there was no clear and obvious lack of legal basis for the claim.

Iron Ore sought leave to appeal to the Quebec Court of Appeal, which dismissed the leave application. The Court of Appeal held that the contested chambers judgment dismissing the motion to dismiss did not meet any of the four exceptions to grant leave to appeal, those exceptions being where the matter raises an issue of 1) competence; 2) lis penden; 3) res judicata, or where (4) it raises a new issue of law, or an issue of public or substantive law that must be decided immediately.

Iron Ore did not convince the Court of Appeal that the issue of whether proof of Aboriginal title is a prerequisite to bringing a claim against a private party required an immediate intervention of the Court of Appeal. The Court of Appeal held that Iron Ore did not establish that Uashaunnuat’s pursuit of the claim would cause Iron Ore irreparable harm since the risks raised by Iron Ore were hypothetical.