First Nation sues paper company in B.C. after court opens door for litigation against private parties

Last week the Halalt First Nation filed two civil suits totalling $2.1 billion in damages against Catalyst Paper, a pulp and paper company based in Richmond, British Columbia.

The community claims that the company’s mill in Crofton—which has been operating for more than 59 years—is interfering with the Halalt First Nation’s aboriginal rights. In addition to the financial compensation, the First Nation is seeking a “permanent order to prevent Catalyst from conducting operations at the Crofton Mill.” This is not the first time Halalt First Nation has used the courts to protect their aboriginal rights. In 2011, the B.C. Supreme Court ruled that the province failed to properly consult with the Halalt First Nation when developing a well project that would ultimately infringe on asserted fishing rights tied to the Chemainus River. However, the current civil cases are against a private party.

The two new civil suits brought forth by the Halalt First Nation should not come as a surprise given the current legal landscape of aboriginal title in B.C. As a 2015 Fraser Institute report points out, increased litigation against private parties is to be expected in light of the Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto judgment. This 2015 landmark judgment opens up private parties, such as citizens and companies, to aboriginal rights and title litigation that was previously only brought forward against governments.

The judgment allows First Nations communities to claim damages against a private party on traditional territory before proving that aboriginal title exists on the traditional territory. This type of litigation against private parties also has the potential to add to the uncertainty of doing business in provinces such as B.C. For example, The Fraser Institute Annual Survey of Mining Companies has shown that the number one impediment for mining investment in B.C. is uncertainty over disputed land claims. These concerns result from the uncertain status of aboriginal land claims in the province. By exposing private parties to litigation that has traditionally been brought only against governments, the Rio Tinto judgment compounds the issue of land uncertainty in B.C. In addition to casting doubt on future resource projects, this judgment also jeopardizes projects like the Catalyst mill that has been operating for half a century.

It should be no surprise then that cases like Halalt First Nation’s $2 billion civil case are coming forward. With more than 100 per cent of the province claimed by First Nations in B.C. there is no doubt that more communities will follow Halalt First Nations’ lead. Whether First Nations are successful or not in these civil cases remains to be seen.