Canadian Lawyer InHouse

25 CANADIANLAWYERMAG.COM/INHOUSE JANUARY 2016 Typically, when aboriginal people seek declaration of status, the Crown bears the brunt of that type of litigation, but these rulings could mean the industry getting caught up in that battle when First Nations communities feel their rights are being infringed by a natural resource project, says Jennifer Fairfax, a regulatory and and interference with riparian rights, to the extent they are based on Aboriginal title and other Aboriginal rights, should not have been struck because it is not plain and obvious that, assuming the facts pleaded to be true, the notice of civil claim discloses no reasonable cause of action in respect of those claims. "However, the chambers judge did strike these claims because the assertions of Ab- original title and other Aboriginal rights have not yet been proven (or accepted by the Crown). In my opinion, he was in error in doing so." In effect, the appeal court said it was reinforcing the already established idea that aboriginal rights exist prior to a court declaration. To fi nd otherwise would constitute creating a "unique prerequisite" to the enforcement of aboriginal title and other aboriginal rights, Tysoe said. "Under this approach, these rights could only be enforced by an action if, prior to the commencement of the action, they have been declared by a court of competent jurisdiction or are accepted by the Crown," he continued. "In my view, that would be justifi able only if aboriginal title and other aboriginal rights do not exist until they are so declared or recognized. However, the law is clear that they do exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights." The BCCA also said it could be argued that requiring aboriginal people to have de- clared rights prior to bringing an application is inconsistent with the principle of equality under the Charter of Rights and Freedoms. By way of an example, the court said had a lessee of land sued Rio Tinto in private nui- sance and there was some issue with respect to the validity of the lessee's lease, the lessee wouldn't be required to prove the validity of environmental lawyer at Osler Hoskin & Harcourt LLP. That means "the industry may not be able to get out of the litigation in a preliminary way," Fairfax says. "What you might fi nd is the industry [getting] caught up in lengthy and costly litigation." When it comes to defending claims of aboriginal title, the Crown not only has the resources but also the appropriate informa- tion, Bursey adds. Both the Quebec and B.C. rulings bring about the question of whether it is appropriate for defendant companies to try to rebut First Nations' claim of title, says Wally Braul, aboriginal and environment lawyer at Gowling Lafl eur Henderson LLP in Calgary. "Isn't that the proper role of the Crown?" Braul says, adding it wouldn't be surprising if the Crown is brought in as a third party to these cases. Beyond the question of appropriateness, of course, is the cost of a labour-intensive endeavour to disprove claims of title "hect- are by hectare," Braul adds. "At least in theory, it's the defendant in- dustry group that's going to have an enor- mous job on its hands to rebut arguments that there is, in fact, in that particular valley or area, aboriginal rights and title," he notes. In Saik'uz First Nation, a lower court judge had initially found the claim had no reasonable chance of success, but that fi nd- ing was reversed on appeal. "The alleged impacts are not trivial and are arguably unreasonable. Accordingly, on the basis of the pleaded facts, it is not plain and obvious that the Nechako Nations do not have a reasonable cause of action in pri- vate nuisance," wrote Justice David Tysoe on behalf of the unanimous appeal court. Added Tysoe: "Based on the above analysis, the claims of private nuisance, public nuisance The proving of titles is no small matter. It involves signifi cant resources. It could take a decade and many, many millions of dollars on both sides to prove it. That's a tremendous burden that's [now] put on private companies. DAVID BURSEY, Bennett Jones LLP

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