On April 15, 2015, the BC Court of Appeal issued its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc, 2015 BCCA 154. The decision is significant because the Court of Appeal found that proof of an existing Aboriginal right (including title) is not required prior to Aboriginal peoples commencing claims against private parties to enforce those rights. While such is the approach in general in civil proceedings, prior to this case, there was uncertainty as to whether Aboriginal rights required proof before a claim to enforce them could be commenced.
In September 2011, the Saik'uz First Nation and Stellat'en First Nation (the "First Nations") brought a civil claim in nuisance (public and private) and breach of riparian rights against Rio Tinto Alcan Inc. ("Alcan") in respect of the operation of the Kenney Dam situated on the Nechako River, creating the Nechako Reservoir. The First Nations are members of the Carrier Sekani Tribal Council. The First Nations alleged that the operation of the Kenney Dam harmed the Nechako River system and its fisheries. The underlying basis for the First Nations' claims was their asserted, but not yet proven, Aboriginal rights, including Aboriginal title, and rights arising from their interest in their Indian Reserves which border the Nechako River.
Alcan brought an application seeking:
- summary judgement dismissing the First Nations' claims on the basis that the defence of statutory authority was a full defence to the claims; and
- in the alternative, an order striking the whole of the Notice of Civil Claim on the basis that it did not disclose a reasonable cause of action.
Alcan based its application to strike the Notice of Claim on the argument that as the underlying Aboriginal rights (on which the claims in nuisance and breach of riparian rights were based) were not proven rights, the claims did not disclose a reasonable cause of action.
The chambers judge dismissed Alcan's application for summary judgement; but granted Alcan's application to strike out the whole of the notice of claim. In the result, the action was dismissed. Of particular note in the decision was the chambers judge's finding that no reasonable causes of action existed until Aboriginal rights and title were proven or acknowledged by the Crown. The First Nations appealed the order striking out their notice of civil claim and Alcan cross appealed the dismissal of its application for summary judgement.
First Nations' Appeal of decision to strike Notice of Civil Claim
The First Nations appealed the chambers judge's decision to strike the Notice of Civil Claim. The Court of Appeal found that the chambers judge erred in holding that no reasonable causes of action existed until Aboriginal rights and title were proven or acknowledged by the Crown. In so finding, the Court of Appeal stated that to require proof of an Aboriginal right or title prior to commencing a claim like the one in this case would "created a unique pre-requisite to the enforcement of Aboriginal title and other Aboriginal rights" which would only be justified if the Aboriginal title and other Aboriginal rights "do not exist until they are so declared or recognized."
The Court relied on the wording of s. 35 of the Constitution Act, 1982 to conclude that "the use of the words 'recognized and affirmed' (in s. 35) indicates that the Crown has already accepted the existing Aboriginal rights, and it is really just a matter of identifying what they are." Turning to the case at hand, the Court of Appeal found that as the First Nations Aboriginal rights were already in existence, "there is no reason in principle to require them to first obtain a court declaration in an action against the Province before they can maintain an action against another party seeking relief in reliance on their Aboriginal rights." In so finding, the Court stated:
Aboriginal people are part of Canada's community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights. Setting a separate standard for Aboriginal people before they can sue other parties in order to enforce their rights is not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms.
On this basis, the Court of Appeal concluded that assuming the facts as alleged were true; it was not plain and obvious that the Notice of Civil Claim disclosed no reasonable cause of action.
The Court of Appeal also considered whether the First Nations' reserve interests were a sufficient basis on which the claim for breach of riparian rights could be based. Ultimately, it found that when the reserves were created with land conveyed by the Province to the federal Crown in 1938, the Province had already abolished riparian rights for land owners and thus the transfer of the lands did not include riparian rights.
In the result, the First Nations' Notice of Civil Claim was restored except those paragraphs dealing with the First Nations' reserve interest as a basis for their riparian rights.
Appeal of decision denying summary judgment on the basis of statutory defence
Turning to Alcan's appeal of the decision denying summary judgment, the Court of Appeal reviewed the caselaw on whether or not an act is the "inevitable result" of a statutory authorization. The chambers judge had found that the harm alleged in this case was not the mere storage and diversion of water, but yet an allegation that the manner in which the water is being stored and diverted was resulting in specific adverse impacts such as increased water temperature, erosion of the river banks and adverse impacts on the fisheries resources. The Court of Appeal agreed with this noting "the statutory authority did not prescribe how the Kenney Dam was to be constructed, and it is not known whether it could have been constructed in a manner that could have avoided the alleged nuisance." The Court further noted that while the licence set out minimum annual release amounts, it did not prescribe timing or manner of releases, or water temperature and thus "it is not known whether water could be released in a fashion that could avoid the alleged nuisance." These matters were the proper subject of the discovery process and thus, a full trial was necessary.
In the result, the Court of Appeal dismissed Alcan's cross-appeal.
Implications of the Decision
One of the most significant practical implications of the decision is that Aboriginal rights are expected to be proven within a proceeding for which the Crown may or may not be a party. Recall that in this case, neither the Provincial, nor the Federal Crown was a party to the litigation at this stage. This raises an interesting question of what a finding of Aboriginal title would mean for other parties interests in the land in question, particularly if they, like the Crown, are not a party to the action. Another potential consequence of taking the approach adopted by the BC Court of Appeal is that given the substantial time and resources required to prove Aboriginal title, private third parties defending such actions (such as Alcan in this case) may be required to participate in years long or even decades long litigation.
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