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We are one of Canada's most experienced law firms working for First Nations clients to:
  • Assert, protect and litigate Aboriginal rights and title to land and resources.
  • Provide legal expertise for economic development & corporate organization.
  • Provide effective advice on Band Governance issues.
  • Negotiate treaties, strategic partnerships and other agreements.
  • Utilize all available tax exemptions.
  • Ensure productive employment relationships and reduce employment liabilities.

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Woodward & Company
844 Courtney Street 
2nd Floor
Victoria, BC V8W 1C4
Canada
P: (250) 383-2356
F: (250) 380-6560
 
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Asserted Aboriginal title can give rise to claims in private and public nuisance, and common law riparian rights.

Wednesday Apr 22, 2015
  Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan (2015 BCCA 154) is an appeal arising from a claim filed the Saik’uz First Nation and Stellat’en First Nation (the “Nechako Nations”) against Rio Tinto Alcan (“Alcan”) concerning Alcan’s Kenney Dam.

The Dam, authorized by an agreement between Alcan and the Province of British Columbia in 1950, is situated on the Nechako River and provides electricity for an aluminum smelter in Kitimat. In 1980, concerned about the state of the fishery in the Nechako River, the Federal Minister of Fisheries and Oceans directed Alcan to release more water from the Nechako Reservoir into the Nechako River. Litigation ensued, but the dispute between the Province and Alcan was eventually settled in 1987. Notwithstanding the settlement agreement, the issue of insufficient flow in the Nechako River continued to be a live issue for the Nechako Nations.

In the present case, the Nechako Nations argued that the diversion of water by Alcan at the Kenney Dam has serious detrimental effects on the Nechako River because the dam alters the timing and quantity of water flow, impacts water temperature, impacts natural erosion of the banks and encourages unnatural sedimentation in the river bed. All of these impacts are harmful to the surrounding ecological system.  The Nechako Nations also argued that harm has been done to their fisheries resources, especially with respect to the possible extinction of the local Sturgeon population due to their inability to spawn under these changed conditions. Accordingly, the main thrust of the Nechako Nations argument was that their ability to use fisheries resources has been significantly interfered with, that they have lost the use, enjoyment and value of the fisheries and lands subject to their Aboriginal title, and that they have experienced negative cultural impacts, all as a result of the Kenney Dam.

In their claim, the Nechako Nations based their request for injunctive relief (and damages in the alternative) on private nuisance, public nuisance and breach of (or interference with) riparian rights. A preliminary issue raised by Alcan was whether or not the Nechako Nations could validly make a claim that falls within these categories, as they have not yet proven Aboriginal title to the land surrounding the Nechako River. Alcan argued that the Nechako Nation’s notice of civil claim disclosed no reasonable cause of action because (1) the Nechako Nation was not an owner of the land surrounding the Nechako River and (2) claims in private nuisance, and breach of (or interference with) riparian rights must be brought by land owners.

The chambers judge issued his decision before the Tsilhqot’in Nation case had been decided by the Supreme Court of Canada (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44). In his decision, the chambers judge found that a claim in private or public nuisance or for breach of riparian rights based on asserted but unproven claims to Aboriginal title and rights had no reasonable chance of success against Alcan. In other words, the chambers judge essentially found that the Nechako Nations would have to prove their Aboriginal title to the lands in question before any of their claims could have a chance of success in court. For these reasons, the judge at first instance found in favour of Alcan.

The Nechako Nations appealed this decision to the British Columbia Court of Appeal. The Court of Appeal found the following: (1) the Nechako Nations have a reasonable cause of action against Alcan in the tort of private nuisance; (2) the Nechako Nations also have a reasonable cause of action against Alcan in the tort of public nuisance; and (3) the Nechako Nations have a reasonable claim for interference with their riparian rights. In other words, Aboriginal title can give rise to recourse in private and public nuisance, and can also give rise to common law riparian rights.

Importantly, the Court of Appeal affirmed that it is not necessary for Aboriginal title and other Aboriginal rights to be proven in court or accepted by the Crown before potential Aboriginal rights holders can bring a claim to defend those rights from infringement.

W&Co receives top ranking as Aboriginal law boutique

Tuesday Apr 07, 2015
  Woodward and Company LLP is delighted to be ranked among the top boutique firms practicing Aboriginal law in Canada. The ranking is carried out by the independent legal directory, Chambers Global 2015.

Drew Mildon, Managing Partner at W&Co, noted: “There is a certain satisfaction to be ranked in this way. The Chambers ranking is based in part on client interviews. Our team constantly strives to achieve excellence in client service, and this recognition affirms our efforts in that regard.”

Chambers and Partners select firms for rankings based on a 3-step process; submissions put forward by law firms, client interviews during the course of research, and their own database resources.

Senior partner Eamon Murphy reflected on the top ranking, “We are thrilled to be ranked among the top Aboriginal law boutique firms. I am very proud to be part of this firm with its extensive history of dedication to justice for First Nation communities. It is a real pleasure to work with such an exceptional team of professionals.”




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