A recent decision from the Supreme Court of British Columbia confirms that First Nations can sue industry licensees for damages flowing from interference with their Aboriginal rights.
In Thomas and Saik'uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15 ("Saik'uz"), the British Columbia Supreme Court confirmed that First Nation plaintiffs can bring common law tort claims against Crown governments, corporations or individuals when their Aboriginal rights have been infringed.
Background
In the 1950s, British Columbia authorized the Aluminum Company of Canada (now Rio Tinto Alcan Inc. — "Rio Tinto") to construct the Kenney Dam to generate hydroelectric power for smelting aluminum. The dam created a 233-km reservoir and diverted the natural course of water, significantly reducing the flow of water through the Nechako River and resulting in a 9-km portion of the river being drained.
In 2011, the plaintiffs Saik'uz and Stellat'en First Nations, who have maintained fisheries on the Nechako River watershed since time immemorial, brought tort claims in nuisance against Rio Tinto for the impact of the Kenney Dam on their Aboriginal right to fish in the Nechako River watershed. They initiated this action to force Rio Tinto to increase the waterflow of the Nechako River with the hopes of restoring fish populations.
Tort Claims for Nuisance May Be Based on Interference with Aboriginal Rights by Non-Governmental Parties, Court Finds
Nuisance is a civil tort claim designed to protect a plaintiff's use of land. To succeed on any nuisance claim, the plaintiff must establish a causal link between the defendant's activity and an interference with the plaintiff's property rights. Significantly, the Court confirmed that Aboriginal rights, including Aboriginal title, are a type of right that a nuisance claim can protect.
Justice Kent found that the plaintiffs have an Aboriginal right to fish in their respective areas of the Nechako River watershed. The evidence demonstrated that fishing in the Nechako River watershed was "fundamental to the plaintiffs' subsistence and way of life" prior to contact with Europeans and that their present-day fishing is a continuation of that pre-contact practice.
While Aboriginal rights have constitutional protections against government interference, Justice Kent held that they could also benefit from protection under tort against non-governmental actors. Aboriginal rights are "intimately related to a particular piece of land" and, as held by Justice Kent, are a legally sufficient foundation for a claim in private nuisance.
Justice Kent admitted that his decision was an "incremental extension" of the law. But he noted this was justified as "some small redress" to Indigenous peoples for the legacy of 150 years of systemic discrimination and attempted assimilation of Indigenous peoples in Canada.
Impact on Fisheries Constituted Nuisance
Justice Kent found that the Kenney Dam resulted in the Nechako White Sturgeon being on the verge of dying out and the sockeye salmon population being reduced to a "mere shadow of its former abundance." Since those fisheries were found to be "central to the life and culture" of the plaintiffs, the decline in fish had serious negative impacts upon the First Nations that were greatly disproportionate to the burden imposed on the non-Indigenous population of the region.
Justice Kent held that Rio Tinto had committed the tort of private nuisance.
The Defence of Statutory Authority
Although the claim for nuisance was made out, Justice Kent found that Rio Tinto was protected by the defence of statutory authority. Where a wrong is the inevitable result of exercising a statutory power, that wrong is considered by courts to be authorized by the statute and, as a result, no liability will flow.
The Industrial Development Act was found by Justice Kent to have "specifically authorized the government to grant [Rio Tinto] a licence" and enter into agreements for hydroelectric development. The Kenney Dam was also approved by the provincial and federal governments. Since Rio Tinto had always operated within the parameters of these authorizations, Justice Kent held that the resulting harm to the fish in the Nechako River watershed was an inevitable result of the government-approved dam and reservoir. Therefore, Rio Tinto was shielded from liability and had no obligation to accommodate reasonable requests from the plaintiffs.
"If actions authorized by government...result in harm to the plaintiffs' rights, only government must answer for that," Justice Kent wrote in his decision.
While the plaintiffs' claims against Rio Tinto failed, Justice Kent suggested that they would have better luck making a claim against the government. Justice Kent stated that "the findings of Aboriginal rights in this case may trigger an obligation on the part of the Crown to reassess their conduct in light of the new reality." That "new reality" reflected the fact that (1) the plaintiffs have an Aboriginal right to fish in the Nechako River watershed, and (2) both the provincial and federal governments have an obligation to protect that Aboriginal right.
Significance of the Decision
Justice Kent's decision may signal a growing willingness of the courts to recognize Aboriginal rights as a fundamental component of not just the relationship between Crown governments and Aboriginal peoples, but also Aboriginal peoples and industry licensees. Justice Kent's decision provides important guidance to First Nations, Crown governments and industry on tort remedies that may be available for First Nations and the related liability of Crown governments and industry.
Justice Kent also provided significant commentary on, and, in some instances, sharp criticism of, existing doctrines of Aboriginal law. He opined that Crown sovereignty is built on "a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada."
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