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Court rules First Nations can sue over property rights

Aerial view of Moose Cree First Nation photo credit: Danny Kresnyak

Industrial giants, from forestry companies to mining operations, must respect aboriginal territorial claims in British Columbia just as they would heed the rights of any other Canadian landowner, the province's highest court has ruled.

A decision from the B.C. Court of Appeal paves the way for First Nations to launch lawsuits to protect their territory from private parties, even without proving aboriginal title.

Two northwestern First Nations expressed vindication on Wednesday after a panel of three judges overturned a lower court ruling that denied them opportunity to sue the aluminum producer Rio Tinto Alcan.

The Saik'uz and Stellat'en First Nations, based downstream of the company's Kenney hydroelectric dam and reservoir, were refused a trial on the premise that aboriginals must first establish their title. Their initial suit was mounted in September 2011.

The nations contend the dam, in operation since the 1950s, causes nuisance and breaches their rights to the natural waterway that runs through their land. They're seeking damages for property-rights violations, alleging the electricity generator has harmed the Nechako River system and its fisheries.

The decision means they can now take their claims to trial.

"We are pleased that the Court of Appeal recognized that First Nations' aboriginal title exists, prior to proof in court or treaties with government," Stellat'en Chief Archie Patrick said in a news release.

He said the decision grants aboriginals the same private-law protections as other individual landowners.

"Our peoples are determined to continue to seek justice for our rights and the Nechako River," he said.

The Kenney dam provides water for Rio Tinto's power generation facility that's used by its aluminum smelter located in Kitimat.

Rio Tinto Alcan has 60 days to apply for leave to appeal to the Supreme Court of Canada. A spokesman said the company is reviewing the decision.

The judge who wrote the decision said that the law is clear that Aboriginal rights "do exist prior to declaration or recognition."

Justice David Tysoe wrote that setting a separate standard for Aboriginal people, before they can sue other parties to enforce their rights, is arguably inconsistent with the charter right to equality.

"Aboriginal people are part of Canada's community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims...," he wrote.

Lawyer Gregory McDade, who represents the two First Nations, said there's been no previous case law on aboriginal title and called the decision significant.

"I would put it on the level of the Haida decision and the Tsilhqot'in decision in terms of moving the law forward so that aboriginal rights are recognized like other Canadian legal rights."

The Haida ruling, in 2004, established that Crown has a duty to consult with First Nations regarding land use. The more-recent Tsilhqot'in decision is a landmark ruling in which the Supreme Court of Canada recognized aboriginal title to a specific tract of land for the first time in the country's history.

That decision, last June, concluded a 25-year-long legal battle.

Follow @TamsynBurgmann on Twitter

Tamsyn Burgmann, The Canadian Press

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