Canada: BC Court Of Appeal: First Nations Can Bring Tort Claims For Harm To Asserted Rights

On April 15, 2015 the British Columbia Court of Appeal ("BCCA") released Saik'uz First Nation v Rio Tinto Alcan Inc.1 ("Saik'uz")

This decision holds significant implications for First Nations communities that assert constitutionally protected Aboriginal rights and title that have not yet been proven in court, recognized by treaty, or acknowledged by the Crown. The Court in Saik'uz holds that a First Nations claim in nuisance against a private party for harm to asserted Aboriginal rights and title should not be struck out as disclosing no reasonable cause of action.

The Decision

The Court of Appeal's decision concerned an appeal by the Saik'uz and Stellat'en First Nations (the "First Nations") on the lower court's decision to strike its notice of civil claim as disclosing no reasonable cause of action.2 The First Nations brought claims against Rio Tinto in private nuisance, public nuisance, and breach of riparian rights based on interference with Aboriginal title, Aboriginal rights and proprietary interest in reserve lands. The First Nations alleged downstream impacts to fisheries resources and negative cultural impacts based on the diversion of water from the Kenney Dam, which was constructed in the early 1950s and operated pursuant to several agreements between Rio Tinto and the Province of British Columbia. The main mode of regulating the water levels in the Nechako Reservoir, created by the dam, is to release water from the reservoir that eventually makes its way to the Nechako River.

The Court of Appeal found that the lower court erred by striking the claims on the basis that they were brought before the Aboriginal rights were proven, because Aboriginal rights exist prior to their identification.3

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.4

The Court of Appeal found that First Nation litigants should be permitted to prove rights during the course of the action in order to succeed in the claim. The Court held that in the civil context, a litigant would be given an opportunity to prove the validity of a right that formed the basis of a claim for harm. The Court of Appeal analogized to a private claim in nuisance where a plaintiff holding a lease sued in nuisance, and where part of the trial process was a dispute about the validity of the plaintiff's lease. A plaintiff would normally be permitted to prove the validity of the lease as a part of proving the cause of action. The Court of Appeal found that "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."5

The Court of Appeal referred to the Supreme Court of Canada in R v Imperial Tobacco Ltd,6 stating that "[if] it is not determinative that the law has not yet recognized a particular claim; the court must err on the side of permitting a novel but arguable claim to proceed to trial."7

The Court of Appeal also considered whether the Crown would be a necessary party to litigation where an Aboriginal community sues a private party. The Court of Appeal found that the Crown was not a necessary party in this litigation, just as a lessor would not be a required party in an action where a lease-holder sued a third party in nuisance.

The Court of Appeal allowed the appeal in part. While it struck the claim by the First Nations for breach of riparian rights to the extent that those rights are alleged to arise from an interest in reserve lands, it allowed the public and private nuisance claims based on impacts on asserted Aboriginal Rights and Title.

Implications

Advancing claims in tort based on harm to Aboriginal rights and title is somewhat novel in Canadian law.

This case does not resolve the issue of the significant costs that Aboriginal communities face in proving their rights in court. In British Columbia (Minister of Forests) v Okanangan Indian Band, the Band's counsel estimated that the cost of a full trial came in at $814,010 in 2003.8 Most Aboriginal communities do not have access to these resources, and so do not have a means of establishing their rights through litigation. Aboriginal communities will also hold the onus of the burden of proof if they seek to establish their rights through civil litigation.

However, this decision represents a shift by giving more options to First Nations, and bringing the actions of private parties into the spotlight. More than ever, this decision emphasizes the necessity of private parties and First Nations to work together to build agreements where a company's actions could adversely affect First Nations.

The parties have 60 days from the release of Court of Appeal decision to file an application for leave to appeal to the Supreme Court of Canada. As a result, the parties have until June 15, 2015 to file. To date, no application has been filed.

Footnotes

1 Saik'uz First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154.

2 The Court also considered a cross-appeal from Rio Tinto Alcan Inc. ("Rio Tinto") on the lower court's refusal to grant summary judgment, as well as the issue of whether suing Rio Tinto was a collateral attack against its water licence. These issues are not discussed here.

3 For reasons specific to legislation in British Columbia, the order to strike the riparian rights claims based on a First Nation ownership interest in reserve lands was upheld by the Court of Appeal.

4 Saik'uz at para 61.

5 Saik'uz at para 68.

6 2011 SCC 42.

7 Saik'uz at para 35.

8 [2003] 3 SCR 371 at para 5. Many Aboriginal rights cases are subsequently appealed, although no estimate of an appeal was provided.

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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