In the most recent decision in the Saik'uz matter, Thomas v. Rio Tinto Alcan Inc., 2016 BCSC 1747, released last week, Mr. Justice Kent decided in favour of Rio Tinto Alcan Inc. (“Alcan”) that both British Columbia and Canada be added to the litigation in order to deal with allegations linked to claims of Aboriginal rights and title. As noted in our previous bulletin when a different aspect of the case made it to the BC Court of Appeal, the underlying case against Alcan was commenced by the Saik’uz First Nation and the Stellat’en First Nation (the “Nechako Nations”) in September 2011. The underlying case claimed private and public nuisance and breach of riparian rights, as a result of Alcan’s operation of the Kenney Dam, which was built on the Nechako River in the early 1950s to provide water for power generation to be used in Alcan’s aluminum smelter in Kitimat. The claims are based on what the Nechako Nations assert to be their “proprietary interests” in the land and waters within part of the Nechako River system by virtue of Aboriginal title, Aboriginal rights and their reserves set aside under the Indian Act.

The Court gave a number of reasons for the two levels of government to be added as parties over the objection of the Nechako Nations, not the least of which was that “even though an express declaration of aboriginal title is not sought in the pleadings, both the federal and provincial Crown are necessary parties to the determination of issues respecting aboriginal title” (at para. 21).

Our above mentioned bulletin regarding an earlier decision in the Saik’uz matter foresaw this application proceeding:

Additionally, because the Crown is the proper party to address claims of Aboriginal title, any non-governmental party subject to such a suit would have incentive to add the Crown to deal with the Aboriginal title and rights aspects of the claim.

In its application, Alcan similarly argued that it has no direct knowledge of matters related to the proof of Aboriginal rights and title, including occupation and cultural practices at sovereignty, and that the Crown is the proper party to respond meaningfully to the Nechako Nations’ claims with regard to Aboriginal rights and title.

It remains now to be seen whether the action progresses as an Aboriginal rights and title claim, which could take very many years to resolve.