Canada: British Columbia Court Of Appeal Allows Tort Claims By First Nations Based On Aboriginal Title And Rights To Proceed To Trial

Summary

On April 15, 2015, the B.C. Court of Appeal ("Court") decided that it is possible for First Nations to bring tort claims founded on Aboriginal title and rights, prior to those rights being formally recognized by a court declaration or government agreement.1

The Saik'uz and Stellat'en First Nations (the "Nechako Nations") brought an action alleging that the construction and operation of the Kenney Dam is damaging the ecosystem of the Nechako River, which the Nations rely on for a variety of purposes.

The Court held that rights such as Aboriginal title must be regarded as existing prior to formal recognition by a court or agreement with the Crown, and commented that barring an action on the assumption that such rights do not exist would be fundamentally unjust. Accordingly, the Court overturned the decision of the lower court to strike the tort claims on that basis. The Nechako Nations will be allowed to advance their tort claims, grounded in Aboriginal title and rights which are yet to be delineated by a court declaration or agreement, at trial.

This decision suggests that private entities could be held liable for impacts to as-yet-unproven Aboriginal title or rights, potentially providing significant leverage for Aboriginal groups while also creating a good deal of legal uncertainty for private entities.

Background and Procedural History

The Nechako Nations commenced an action against Rio Tinto Alcan Inc. ("Alcan") alleging private and public nuisance and interference with riparian rights in relation to the construction and operation of the Kenney Dam. Among the impacts associated with these claims were alterations to the water flow, impacts on water temperature, erosion, increased sedimentation of the riverbed and corresponding impacts on fish.

In their pleadings, the Nechako Nations alleged that they have Aboriginal title to the lands adjacent to and the beds of the Nechako River and other Aboriginal rights and interests related to its waters and resources. The impacts they allege the Kenney Dam causes to Aboriginal title lands and certain reserve lands, rights, and interests form the basis of the tort claims at issue.

The Decision of the Chambers Judge

Alcan brought a motion to strike the Nechako Nations' tort claims on the basis that 'claimed' Aboriginal title and rights cannot ground a claim against a private party until such time as they are established by court declaration or by agreement. Thus, it argued, the claims in this case could not succeed. It also sought summary judgment on the grounds that the water license associated with the Kenney Dam authorized the torts being complained of, or alternatively, that the tort claims were a collateral attack on the water license.

The Chambers Judge held that where the tort claims were premised on asserted but unproven Aboriginal title or rights, they had no reasonable chance of success. He also found that the Nechako Nations' claims in private nuisance or riparian rights which were grounded in a reserve interest in land had no reasonable chance of success.2

Because nuisances defensible by statutory authority must arise as the 'inevitable' result of the statutorily-authorized action, and the Chambers Judge found that Alcan had provided no evidence to prove that this was so, he held there was a genuine issue for trial with respect to that issue. On the issue of collateral attack, the Chambers Judge held that the claim was, in substance, one for injunctive relief and damages, and commented that it was Alcan that had raised its water license as a defence to that claim. The Chambers Judge denied the motion for summary judgment.3

The Nechako Nations appealed with respect to the Chambers Judge's decision to grant the motion to strike. Alcan cross-appealed on his decision to deny the motion for summary judgement.

Issues on Appeal

The central question in the appeal was whether tort claims related to impacts to Aboriginal title and rights may be advanced prior to those rights being established by court declaration or recognized within a government agreement.

The Court's Decision

(a) Claims Grounded in 'Unproven' Aboriginal Title and Rights

On appeal, the Court considered the test to strike pleadings from R. v. Imperial Tobacco Canada Ltd., which is whether it is "plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action." In that regard, it commented that if the facts underlying the Nechako Nations' claims to Aboriginal title were indeed properly accepted as true, then it was not "plain and obvious" that sufficient occupancy or other rights necessary to sustain a claim in private nuisance would not be present.5

Similarly, the Court held that it was arguable that unreasonable interference with harvesting of fish from the Nechako River, if indeed an Aboriginal right, could support a claim for public nuisance. It was not, therefore, "plain and obvious" that such a claim would not succeed.6

Finally, the Court considered that "it is arguable that a ... kind of riparian rights associated with ownership in fee simple attach to Aboriginal title to lands adjacent to water." Consequently, the Court disagreed with the Chambers Judge that it was "plain and obvious" that these claims could not succeed, and overturned his decision in that regard.7

Significantly, in so doing, the Court also highlighted a general concern that the effect of the lower court's ruling would have been to create an unfair prerequisite to the enforcement of Aboriginal title and rights.

Pointing to the words "recognized and affirmed" in s. 35 of the Constitution Act, 1982, the Court confirmed that the Crown has already accepted that Aboriginal rights exist and that "it is really just a matter of identifying what they are."8

(b) Claims grounded in Possession of Reserve Land

Regarding claims grounded in an interest in reserve lands, the Court considered that the reserve lands came into existence after the date that the B.C. legislature abolished riparian rights. When those lands were transferred to the federal Crown, the Court reasoned, "riparian rights did not accompany the transfer."9 Therefore, this particular aspect of the Nations' claim did not disclose a reasonable cause of action and was ordered struck.

However, the Court found it was not plain and obvious that an interest in reserve lands could not ground a claim in private nuisance. Given that the definition of "reserve" within in the Indian Act confers to the bands the right to exclusive possession of the land, the Court reasoned that such a right to exclusive possession was a sufficient interest capable of grounding a claim in private nuisance.10

(c) Summary Judgment

The Court addressed and agreed with the reasoning of the Chambers Judge on the issue of summary judgment, and dismissed the cross-appeal.

The parties have 60 days to seek leave to appeal to the Supreme Court of Canada.

Footnotes

1 Tsilhqot'in Nation v British Columbia, 2014 SCC 44 at para 97 ["Tsilhqot'in"], emphasis added.

2 Saik'uz First Nation and Stellat'en First Nation, supra note 1 at paras 32-33, citing the reasons for judgment of the chambers judge, 2013 BCSC 2303.

3 Ibid at para 29.

4 2011 SCC 42 at para 17.

5 Saik'uz First Nation and Stellat'en First Nation, supra note 1 at paras 34; 54.

6 Ibid at para 57.

7 Ibid at para 59.

8 Ibid at para 62.

9 Ibid at para 81.

10 Ibid at paras 88-89.

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