Good corporate governance must take into account Aboriginal rights – OKT Law

October 21, 2024

The Supreme Court recently refused to hear the appeal in Thomas v Rio Tinto Alcan Inc, 2024 BCCA 62 [Saik’uz]. In Saik’uz, the British Columbia Court of Appeal found that Aboriginal fishing rights were capable of grounding a claim in nuisance against a private entity, but that Rio Tinto Alcan Inc. (“Rio Tinto”) had a complete defence because its actions were authorized by statute.

The Supreme Court’s refusal to hear this appeal was a missed opportunity to advance reconciliation. The Court could have done so by abolishing the statutory authorization defence for infringements of Aboriginal rights and title, thereby allocating a greater share of the risk of liability onto private entities. If the Supreme Court had taken this bold step, it would have increased the likelihood of these claims being settled, either by the private entities themselves or by the Crown under pressure from the private sector. In other words, the Supreme Court missed a valuable opportunity to allocate the risks of liability more efficiently in a way that could have generated more settlements.

Nevertheless, the Supreme Court left open the ability for section 35 rightsholders to sue private parties in tort (and not just the Crown) for breaches of their Aboriginal rights. This creates additional risk for third parties seeking to advance projects that may interfere with the common law rights of section 35 rightsholders. Companies should take this risk into account when they operate in territories where there are Aboriginal rights in play.

Read More: https://www.oktlaw.com/good-corporate-governance-must-take-into-account-aboriginal-rights/