Since April 15, 2015 when the BC Court of Appeal handed down its decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154 (“Saik’uz”), (which accepts the possibility for First Nations to pursue claims of impacts to as-yet-unproven Aboriginal rights and title against private parties), the Alberta Court of Queen’s Bench has also allowed Aboriginal plaintiffs to pursue a tort claim prior to proving Aboriginal rights and title. It should be noted, however, that the Alberta decision only follows Saik’uz in part.

For further information regarding the BC Court of Appeal Saik’uz decision, please view our previous bulletin, First Nations Claim for Damage to Aboriginal Title Prior to Proving Aboriginal Title.

Alberta Court of Queen’s Bench Decision

In Ominayak v. Penn West Petroleum Ltd., 2015 ABQB 342 (“Ominayak”), Justice Simpson of the Alberta Court of Queen’s Bench, did not dismiss the Plaintiffs’ action against Penn West Petroleum Ltd. (“Penn West”) as an abuse of process (as sought by Penn West). However, he held that the plaintiffs’ claim that Penn West’s regulatory approvals are invalid is a collateral attack on those approvals and required that the plaintiffs amend their statement of claim. Justice Simpson held that while there are ongoing claims, the Crown’s duty is a duty to consult in the process leading to issuing the regulatory approvals and that the appropriate remedy for a breach of such a duty is by appeal or judicial review.

Justice Simpson disagreed with how the BC Court of Appeal distinguished the Behn v. Moulton Contract Ltd, 2013 SCC 26 and Canadian Forest Products Ltd. v. Sam, 2013 BCCA 58 decisions, based on the Saik’uz claim that the regulatory approvals there are “constitutionally inapplicable” rather than “invalid”. He considered the BC Court of Appeal’s distinction between a claim of invalidity and a claim of constitutional inapplicability to be a distinction without a difference, since “if the licence was granted without constitutional authority, is it not invalid?” (para 50).

Rio Tinto Alcan Appeals to the Supreme Court of Canada

Rio Tinto Alcan Inc. submitted its leave to appeal the BCCA Saik’uz decision to the Supreme Court of Canada on June 15, 2015.

It will be interesting to see whether the Supreme Court of Canada grants leave and, if so, what limits it may set for claims against private parties for impacts to Aboriginal title prior to proving such Aboriginal title.