Canada: B.C. Court Of Appeal Allows Environmental Claim Based On Unproven Aboriginal Title To Proceed


On April 15, 2015, the British Columbia Court of Appeal (BCCA) concluded that a lower court erred in dismissing a First Nation's environmental action against Rio Tinto Alcan Inc. (Alcan) as disclosing no reasonable cause of action on the basis that Aboriginal rights or title had to be proven in court or acknowledged by the Crown before bringing such a claim. In doing so, the BCCA allowed the Saik'uz and Stellat'en First Nations (the Nechako Nations) to proceed with their civil claim against Alcan relating to the Kenney Dam and its alleged effects on the Nechako River system and its fisheries.


In September 2011, the Nechako Nations, an Aboriginal First Nation and an Indian Act "band," commenced a claim alleging that Alcan's construction of the Kenney Dam had diverted and altered the water flowing to the Nechako River system causing significant adverse impacts on the fisheries since the Dam's construction in 1952. The Kenney Dam was built in connection with an agreement between Alcan and the Province of British Columbia (B.C. or the Province) made in 1950 pursuant to the Industrial Development Act (the Act). The Act allowed B.C. to enter into agreements and make arrangements with persons proposing to establish an aluminum industry in the province, and in Alcan's case, allowed for the necessary licences to operate and construct the Kenney Dam in 1950 and a smelter in nearby Kitimat in 1953.

In their claim, the Nechako Nations asserted that the lands and the bed of the Nechako River are subject to Aboriginal title and rights on the basis of pre-sovereignty exclusive use and occupation of the Central Carrier territory, including specific sites along the Nechako River for fishing purposes and other cultural and spiritual practices. The Nechako Nations also claimed that they have reserves on the bank of the Nechako River system now governed by the Indian Act, which give them riparian rights at common law. The claim sought to restrain Alcan from operating the Kenney Dam by way of interlocutory and permanent injunctions (or damages in the alternative) on the basis of public and private nuisance and breach of riparian rights.

Alcan, in response, brought an application for summary judgment on the basis that it had a full defence of statutory authority pursuant to its agreement with the Province under the Act, or, in the alternative, an order striking the claim on the basis that it did not disclose a reasonable cause of action because Aboriginal title or rights had not yet been proven in court or acknowledged by the Crown and therefore could not form the basis of a claim. Alcan also sought orders striking out certain portions of the Nechako Nations' court materials as being impermissible collateral attacks on Alcan's licences (and therefore, collateral attacks on its full defence of statutory authority).

Chambers Judge Decision (2013 BCSC 2303)

In his decision, the Chambers Judge dismissed Alcan's application for summary judgment on the basis that Alcan had failed to establish its defence of statutory authority on the evidence. He also rejected Alcan's argument that the Nechako Nations' constitutional argument regarding the defence of statutory authority amounted to a collateral attack on the Alcan licences.

However, the Chambers Judge concluded that because the Nechako Nations' claims – in nuisance (both public and private) and breach of riparian rights – were predicated on asserted but unproven claims to Aboriginal title and rights, the claim had no reasonable chance of success. The Chambers Judge also dismissed the claim based on common law riparian rights on the basis that all water rights had vested in the Province prior to the creation of the reserves by the federal Crown, therefore those rights could not have attached to the reserve land (and, in any event, common law riparian rights had been extinguished by statute in B.C. under the Water Act).

Appeal (2015 BCCA 154)

The BCCA dismissed Alcan's cross-appeal on its summary judgment application, agreeing with the Chambers Judge that: (i) there was a genuine issue for trial on the defence of statutory authority (specifically, whether the impacts of the Kenney Dam were "inevitable"); and (ii) the claim of the Nechako Nations did not amount to a collateral attack on the Alcan licences.

The BCCA also granted the appeal of the Nechako Nations and overturned the Chambers Judge's dismissal of their action as disclosing no reasonable cause of action, thus allowing the Nechako Nations' action to proceed. The Court applied the well-known legal test on such a motion to strike – that the Court must assume that the facts as pleaded in the statement of claim are true. Applying that test, the BCCA concluded that "the claims of private nuisance, public nuisance and interference with riparian rights, to the extent they are based on Aboriginal title and other Aboriginal rights, should not have been struck because it is not plain and obvious that, assuming the facts pleaded to be true, the notice of civil claim discloses no reasonable cause of action in respect of those claims" (para. 60).


Specifically, on the subject of private nuisance, the BCCA explained that the facts, as pleaded, could ground a claim in nuisance:

            [54]  The Nechako Nations plead that they exclusively occupied portions of the Central Carrier territory, including the Nechako River and lands along its banks, at the time of British sovereignty. If this alleged fact is true, the Nechako Nations would have Aboriginal title to those lands. Although this is not ownership in fee simple, Aboriginal title would give the Nechako Nations the right to possess the lands. It is therefore not plain and obvious that the Nechako Nations do not have sufficient occupancy to found an action in private nuisance.  

The Court also observed that "the Nechako Nations plead facts that support a claim for an Aboriginal right to harvest fish," and concluded that this also could found an action in private nuisance.

On the subject of public nuisance, the Court reasoned:

           ... it is arguable that unreasonable interference with the public's interest in harvesting fish from the Nechako River system is a type of interference protected by the tort of public nuisance. The Aboriginal right to harvest fish pled by the Nechako Nations may be sufficient to demonstrate that they have suffered special damage as a result of the diversion of the Nechako River at the Kenney Dam. Hence, on the basis of the pleaded facts, it is not plain and obvious that the Nechako Nations do not have a reasonable cause of action in public nuisance.  

Riparian Rights

On the claim for breach of riparian rights, the Court concluded that it also could be founded on the asserted Aboriginal title to lands adjacent to the Nechako River. Dealing with Alcan's argument that the B.C. Water Act vests all fresh water rights in the Province, the Court concluded that it was arguable – as asserted by the Nechako Nations in their notice of constitutional question – that this legislation is constitutionally inapplicable to the extent it purports to extinguish riparian rights held by them prior to its enactment. Thus, it was not plain and obvious a claim for breach of riparian rights could not succeed.

Claim Permitted to Proceed Without Proof or "Recognition" of Aboriginal Rights

Having found that the Nechako Nations' claim in nuisance and riparian rights was tenable at law, the BCCA turned to what it considered to be "the real issue" on the appeal: "whether the Aboriginal rights have to be first 'recognized' before the claim can be advanced."

The BCCA rejected the notion that a First Nation must, prior to commencing a tortious civil claim against a non-governmental party, prove Aboriginal title as against the Crown, stating:

            [61]  The effect of the ruling by the chambers judge is to create a unique pre-requisite to the enforcement of Aboriginal title and other Aboriginal rights. Under this approach, these rights could only be enforced by an action if, prior to the commencement of the action, they have been declared by a court of competent jurisdiction or are accepted by the Crown. In my view, that would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are so declared or recognized. However, the law is clear that they do exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.  

Applying Supreme Court of Canada precedent in Van der Peet, Delgamuukw and Tsilhqot'in Nation, the Court concluded that "whatever Aboriginal rights the Nechako Nations may have are already in existence." As a result, there was no reason in principle to require them to first obtain a court declaration in an action against the Province before they could maintain an action against a non-governmental party seeking relief in reliance on their Aboriginal rights. The BCCA even went on to suggest that to find otherwise might violate the equality provisions of the Charter of Rights and Freedoms.


This decision does not diminish the significant challenges faced by First Nations in establishing Aboriginal rights or title and, on its face, does not assist First Nations seeking claims where title issues have been resolved. The Court has applied the applicable general law to assertions of Aboriginal rights with respect to a claimant asserting rights in tortious claims. In this context the decision is not surprising. However, if followed, the decision could undermine the ability of industry to obtain a speedy preliminary ruling in such actions where Aboriginal rights or title have not been previously proven or recognized. This could result in industry becoming embroiled in Aboriginal rights and title litigation better suited to involving only the Crown, with no summary escape valve.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.