Canada: Court Upholds First Nations’ Right To Bring Claims Based On Interference With Unproven Aboriginal Rights And Title

In its recent decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc., the Court of Appeal for British Columbia (BCCA) confirmed that First Nations may bring actions against private parties in nuisance and breach of riparian rights on the basis of unproven aboriginal rights and title claims as well as Indian reserve rights.

BACKGROUND

Rio Tinto Alcan Inc. (RTA) owns the Kenney Dam (Dam) on the Nechako River (River) in northwestern British Columbia. The Saik'uz First Nation and Stellat'en First Nation (First Nations) allege that the Dam's diversion and alteration of the water flowing to the River has caused significant adverse impacts on their fisheries resources. The First Nations claimed these impacts unreasonably interfered with their unproven aboriginal title and rights, and their interests as beneficial holders of Indian reserves, justifying an action in nuisance and for breach of riparian rights.

Upon application by RTA, the Supreme Court of British Columbia (BCSC) struck the action as disclosing no reasonable claim. The BCSC held the claims could only be founded on aboriginal title or rights that had been previously proven or acknowledged by the Crown. Moreover, the court held that the "key problem" with the First Nations' claim was that it was advanced against a private party when such claims should be brought against the Crown. The BCSC also held that the First Nations' interest in reserve land is only a right of use and occupation, and insufficient to ground a nuisance claim. Finally, the BCSC dismissed RTA's defence of statutory authority—relying on the licence permitting the Dam—finding that RTA had not established that the adverse impacts to the River inevitably flowed from the actions authorized by the licence.

For further information on the BCSC decision, see our February 2014 Blakes Bulletin: First Nations' Nuisance Action Struck for Want of a Crown Defendant.

COURT OF APPEAL DECISION

The test for striking an action at the outset is whether—assuming the facts alleged by the claimant are true—it is plain and obvious that the claim discloses no reasonable cause of action. The BCCA applied this test and largely upheld the right of the First Nations to bring their claim against RTA. To be clear, the BCCA did not uphold the First Nations' claim itself; that remains to be determined at trial.

Claims Based on Unproven Aboriginal Title and Rights

The First Nations based their claim on private nuisance, public nuisance and riparian rights.

A private nuisance claim requires the claimant to prove interference with an owner's use or enjoyment of land. With respect to ownership, the First Nations claim aboriginal title to portions of the River and surrounding lands. The First Nations also claim an aboriginal right to harvest fish. Comparing fishing rights to trapping rights, which have previously been held sufficient to ground a private nuisance claim, the BCCA held that unproven aboriginal rights and title may constitute sufficient "ownership" necessary to found a private nuisance claim.

Second, the BCCA found that unreasonable interference with the public's interest in harvesting fish from the River may constitute public nuisance. The court also held that the First Nations' claimed aboriginal right to fish may be sufficient to demonstrate that they have suffered special damage as a result of RTA's operation of the Dam.

Third, the BCCA held that the First Nations' claimed aboriginal title to the land adjacent to the River, if proven, could give rise to common law riparian rights.

Most fundamentally, the BCCA overruled the BCSC decision that aboriginal title and rights must be proven or accepted by the Crown before a First Nation can bring an action grounded on those rights. Just because aboriginal rights have not been proven does not mean they do not exist. They are protected by section 35 of the Constitution Act, 1982. Their eventual proof (or acceptance by the Crown) may be a necessary component of ultimate success in an action for interference with those rights, but it is not a prerequisite to starting such an action.

Claims Based on Indian Reserve Interests

The First Nations also claimed private nuisance based on their interests in reserves. The BCCA held that the Indian Act provides First Nations with exclusive possession of reserve lands. Exclusive possession of land is sufficient to ground a private nuisance claim.

The BCCA upheld the BCSC conclusion that the First Nations' claim to riparian rights based on their reserves had no reasonable prospect of success because the provincial government had extinguished such rights prior to the creation of reserves.

RTA's Statutory Authority Defence

The BCCA agreed with the BCSC dismissal of RTA's application for summary judgment based on its defence of statutory authorization. The court held that there was a genuine issue for trial, as the statutory authority relied upon by RTA did not prescribe how the Dam was to be constructed. Evidence at trial will be needed to determine whether it could have been constructed in a manner that avoided the alleged nuisance. Additionally, the statutory authority for the operation of the Dam does not prescribe the timing or manner of the releases of additional amounts of water or the temperature of released water. As such, it is not clear whether the water could be released in such a way as to avoid the nuisance alleged by the First Nations.

CONCLUSION

Although not unprecedented, claims by First Nations against private parties for breach of aboriginal rights and title are unusual. Typically such claims are made against the provincial or federal government, or both. Governments usually have access to historical records and other means to defend aboriginal rights and title claims, and more inclination to do so than private parties given that such claims generally relate to the use of Crown resources. The BCCA decision, however, indicates that First Nations are not limited to making such claims against governments.

It is important to note that the court's reasoning is not only applicable to aboriginal rights but also to treaty rights, which are equally protected by section 35 of the Constitution Act, 1982. As such, this decision could have ramifications for aboriginal claims across Canada.

Finally, RTA may seek leave to appeal to the Supreme Court of Canada, which may further consider these issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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