Canadian Lawyer InHouse

JANUARY 2016 24 INHOUSE action against Rio Tinto for nuisance and for breach of riparian rights as a result of the company's diversion of water from the Kenney Dam, which they allege affected the fl ow and temperature of water, caused erosion of the banks, and brought unnatu- ral sedimentation in the riverbed with con- sequences for fi sheries resources. New grounds for litigating Recent cases suggest companies may face lengthy litigation on claims such as the one in Saik'uz First Nation and Stellat'en First Nation, demonstrating how important it is to engage stakeholders. BY YAMRI TADDESE D efence lawyers are grappling with how to wrap their minds around the implications of a recent ruling that could mean costly and drawn-out litigation for companies faced with environmental damage lawsuits brought by aboriginal communities. After the Supreme Court refused to grant leave to appeal a British Columbia Court of Appeal decision, it is now possible for ab- original people to directly sue private com- panies for environmental harm on a piece of land over which they don't already have an established title. In Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc., the respon- dents contested the applicant First Nation communities' claim on the basis their inter- est in the land in question is asserted but not yet proven. But the appeal court said the actual proving of aboriginal title, an expen- sive and tedious process often involving the Crown, could be argued within the action against the private company. "That is a signifi cant step," says Van- couver-based environmental and aboriginal law lawyer David Bursey, a partner at Ben- nett Jones LLP. "The proving of titles is no small matter. It involves signifi cant resourc- es. It could take a decade and many, many millions of dollars on both sides to prove it. That's a tre- mendous burden that's [now] put on private companies." An appeal court in Quebec decided in a similar fashion in a related case, Uashaunnu- at (Innus de Uashat et de Mani-Utenam) v. Compagnie minière IOC inc. That ruling will also not be appealed at the top court. The rulings have signifi cant impact for in- dustries, including the possibility of facing actions for activities that have been licenced by the Crown, Bursey says. The applicants in Saik'uz First Nation "are not suing the Crown for the issuance of the licence to [Rio Tinto Alcan Inc.], they are suing the private company directly," he adds. In the case, Nechako Nations brought an

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