In this decision, the British Columbia Supreme Court struck an
action for injunctive relief brought by two First Nations against
Rio Tinto Alcan (Rio Tinto). The First Nations had advanced claims
in private nuisance and breach of riparian rights. In striking the
claims, the Court held that they had no reasonable chance of
1. in order to succeed on their claim in nuisance, the First
Nations needed a proven interest in land and not merely an
asserted, but unproven, claim to aboriginal rights and title;
2. the First Nations' interests in Reserve lands did not
confer on the First Nations sufficient riparian or property rights
to support a claim in nuisance or breach of riparian rights.
This case also provides a cautionary tale for industry in that
the Court imposed significant restrictions on the availability of
the defence of statutory authorization.
The claim was commenced by the Saik'uz First Nation,
Stellat'en First Nation, and their respective Chiefs
(Plaintiffs). The Plaintiffs claim aboriginal rights and title
along the Nechako River, including rights and title to the riverbed
and its banks. They sought an interim and permanent injunction to
restrain Rio Tinto from continuing the alleged nuisance resulting
from its water diversion activities in connection with its
operation of the Kenny Dam (in operation since 1952). The First
Nations alleged that their claimed aboriginal rights and title or
alternatively their interests in Reserve lands amounted to
proprietary interests sufficient to ground a claim in private
nuisance and their claim that the water diversion impacted their
common law riparian rights. Both propositions were rejected by the
In addition to its application to strike the Plaintiffs'
claims, Rio Tinto sought to have the claims dismissed on summary
judgment on the basis that it was entitled to rely on the defence
of statutory authorization, because its water diversion operations
were carried out in accordance with the terms of a license issued
by the Province. The Court rejected this argument on the basis that
there was no evidence before it that the alleged impacts were the
inevitable result of authorization or that there were no practical
alternatives that may be available for operating the dam to avoid
the alleged impacts.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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