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ARTICLE · 21 MARCH 2024

No Open Floodgates: BCCA Upholds The Defence Of Statutory Authorization For Impacts To Aboriginal Rights By Third Parties

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On February 26, 2024, the British Columbia Court of Appeal (the BCCA) issued its decision in Thomas v. Rio Tinto Alcan Inc.1...

CanadaLitigation, Mediation & Arbitration
Sandra Gogal
Sandra Gogal
Aaron Cressman
Aaron Cressman
David How
David How
Shermaine Chua
Shermaine Chua
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On February 26, 2024, the British Columbia Court of Appeal (the BCCA) issued its decision in Thomas v. Rio Tinto Alcan Inc.1 Thomas concerned an appeal of a decision by the British Columbia Supreme Court (the BCSC), which had dismissed a claim in nuisance against Rio Tinto Alcan Inc. (Rio Tinto) by the Saik'uz First Nation and Stellat'en First Nation (collectively, the First Nations).2

The BCCA largely upheld the BCSC's decision, affirming that:

  • an Aboriginal right protected under section 35 of the Constitution Act, 1982 (Section 35) can ground a common law private claim in nuisance in appropriate circumstances;3
  • a nuisance claim arising from interference with an Aboriginal right is subject to the defence of statutory authority;4

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