Rio Tinto Alcan Inc. v. Jackie Thomas on her own behalf and on behalf of all members of the Saik'uz First Nation, et al.

(British Columbia) (Civil) (By Leave)


Aboriginal law - Aboriginal rights, Civil procedure.


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Aboriginal law – Aboriginal rights – Aboriginal title – Civil procedure – Application for summary judgment and to strike pleadings – Action in nuisance and breach of riparian rights brought by Aboriginal First Nations against private company resulting from the operation of a hydroelectric dam allegedly causing harm to river waters and fisheries – Defendant bringing application for summary judgment and to strike pleadings – Whether an aboriginal group has a cause of action against a private entity for interference with aboriginal title and rights, and if so, in what circumstances – Whether the defence of statutory authority requires more than proof that an interference with property is the result of the very acts authorized by statute – Whether a constitutional challenge to the legal force and effect of a government decision, advanced in an action against a private entity, is a collateral attack upon the decision.

The respondents commenced an action in nuisance and for breach of riparian rights against the applicant, alleging that since the construction by the applicant of the Kenney Dam, located in British Columbia, the applicant has diverted and altered the water flowing to the Nechako River with significant adverse impacts on its waters and on the fisheries resources of the Nechako River and its tributaries, and that these impacts constitute an unreasonable interference with the respondents’ proprietary rights. The applicant brought an application seeking summary judgment in its favour as well as an order striking the whole or specific parts of the respondents’ pleadings as disclosing no reasonable cause of action.