Private Liability in Tort for Breach of Aboriginal Rights is Here to Stay – Clark Wilson LLP

March 13, 2024

Recently, the BC Court of Appeal (“BCCA”) released its decision in Thomas v Rio Tinto Alcan Inc, 2024 BCCA 62. The decision largely upheld the lower court’s decision. However, the court notably varied the declaratory relief granted to the appellant First Nations. The BCCA declared that the provincial and federal governments have a fiduciary duty to protect the appellant First Nations’ Aboriginal rights.

History

This appeal stems from a January 7, 2022 decision of the BC Supreme Court which found that industry may be liable in nuisance for breaches of Aboriginal title and rights, and interests in reserve lands. In that case, statutory authority was held to be a full defense. However, the First Nations proved their Aboriginal right to fish for food, social, and ceremonial purposes in the Nechako River watershed. The trial judge issued a declaration that each government has an obligation to protect those rights.

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