Canada: Intersection Of Aboriginal Rights Law And Private Tort Law: A New Development?

Last Updated: July 23 2019
Article by Anita Boscariol

Thomas v Rio Tinto Alcan Inc.

The Thomas v Rio Tinto Alcan Inc. line of cases was initiated by the Saik'uz and Stellat'en First Nations, located west of Prince George (the "First Nations") as a claim for damages against a private defendant for alleged harm to proprietary interests based on a claim of asserted, but unproven, Aboriginal rights and title. This case presented the opportunity for a new development in aboriginal law.

In 2011, the First Nations commenced an action in tort against Rio Tinto Alcan ("Alcan") for nuisance caused by the Kenney Dam to the Nechako River system and to their adjacent reserves and to lands to which they assert aboriginal title. In July 2016, the defendant, Alcan, applied to have both the federal and provincial Crown added as defendants in the litigation. The First Nations opposed the addition of the Crown because they were not seeking a formal declaration of Aboriginal title; they were purely bringing an action in tort (nuisance and wrongful interference with riparian rights) against Alcan. Nonetheless, the Crown, both federal and provincial, were added as defendants in 2016, by court order.

The First Nations concurrently added to their claim allegations of duties and defaults on the part of the Crown defendants. This included that the Crown failed to act on their fiduciary duty and other obligations to the First Nations with respect to sufficiently controlling the water flows from the dam so as to preserve the fish and fishery in the Nechako River system.

Alcan and the Crown opposed some of the First Nations' amendments to their claim for various reasons, including the fact that they believed them to be vague and thus difficult, if not impossible, to enforce,

On application before the Supreme Court of British Columbia (the "Supreme Court"), the First Nations were successful to the extent that they were allowed to amend their claim, with costs awarded to the First Nations to be assessed at the conclusion of the action.

However, the court in obiter noted a number of problems the First Nations would need to overcome at trial in order to be successful in their claim. In the reasons issued by the Supreme Court in January 2019, the court found that it is not clear at this stage that the relief sought by the First Nations is bound to fail. Ultimately, all is left to be determined at trial.

The Evolution of the Case:

In September 2011, the First Nations commenced an action against Alcan for nuisance caused to their proprietary interests and riparian rights. In addition, the First Nations asserted that their aboriginal rights to a fishery were impacted as a result of the diversion and alteration of the water flowing to the Nechako River.

On December 13, 2013, in the Thomas v Rio Tinto Alcan Inc., 2013 BCSC 2303 decision, Mr. Justice Cohen, in his reasons for judgment, struck the First Nations' Notice of Civil Claim as he determined that no claim for proprietary damages could be brought by First Nations until the First Nations' claims of Aboriginal rights and title are first proven. The Supreme Court ruling was overturned in large part by the Court of Appeal on April 15, 2015, in its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154. The Court of Appeal determined that the First Nations had properly brought their action against Alcan, as their claims to aboriginal title and rights, if established, would result in sufficient occupancy to found an action in private nuisance.

The test for determining whether a reasonable cause of action has been made out is to determine, assuming the facts alleged in the notice of civil claim are true, whether a reasonable cause of action in tort has been made out. The Court of Appeal held that the First Nations, like any other litigant, should be afforded the opportunity to prove the rights required in order to succeed in their claim against the other party. Case law from Delgamukw to Tsihlqo'tin confirms that aboriginal title exists and defines the nature of aboriginal rights and title. Section 35(1) of the Constitution Act confirms recognition of "existing aboriginal and treaty rights of the Aboriginal peoples of Canada".

The First Nations' private nuisance claim, based on their right to exclusive possession of their reserve lands, was well founded. However, the Court of Appeal upheld the Supreme Court's finding that, on the facts of the case, the First Nations' reserve interests do not include riparian rights. Water rights were vested in the Province of British Columbia in 1925, years before the reserves were created in 1938. Nonetheless, the First Nations' claim to wrongful interference with riparian rights, tied to potential aboriginal title lands, was founded.

Application to Add Crown as Defendants

In July 2016, Alcan applied to have both the federal and provincial Crown added as defendants in the action. The First Nations opposed the addition of the Crown because they were not seeking a formal declaration of aboriginal title; they were purely bringing an action in tort. Nonetheless, Mr. Justice Kent in his reasons for judgment in Thomas v Rio Tinto Alcan Inc., 2016 BCSC 1474, concluded that it was appropriate for the federal and provincial Crown to be added as defendants in the Claim for the following reasons:

  • this is a major and complex case in which the intersection between aboriginal rights and common law tort stand to be defined
  • the First Nations had already formally invited the Crown to participate through issuance of a Notice of Constitutional Question, challenging various laws and legal agreement issued or made by the Crown as inapplicable based upon alleged aboriginal title and rights held by the First Nations; pursuant to s. 8 of the Constitutional Question Act, both crowns have the right to become a party and contest the existence and extent of the title and rights forming the basis of the constitutional challenge
  • pursuant to the Water Act, the Province owns the water that forms the subject matter of the dispute, subject to the aboriginal rights and title the First Nations may have, and therefore, is entitled to participate in litigation involving its property
  • the First Nations allege, and will be required to establish, that they have aboriginal rights and title to the lands and waters affected by the operation of the Kenney Dam
  • though the Court of Appeal had confirmed the action in which aboriginal rights and title were claimed could proceed despite the fact that the Crown was not yet a party to the litigation, it is still an important factor that litigation involving claims of Aboriginal rights and title is of general public importance, and a private litigant may not adequately represent all of the public interests at stake
  • a finding regarding aboriginal rights and title of the First Nations involves evidence of exclusive occupation on the date of British sovereignty over British Columbia and culturally distinctive practices carried out prior to European contact, matters of which Rio Tinto says they have no knowledge; only the Crown would be able to meaningfully respond to the First Nations' claims
  • despite the fact that adding the crown as defendants will add complexity, time and expense to the proceedings, an assertion of aboriginal title and rights as the basis for common law rights leads almost inevitably to the need to add the Crown as defendants

As such, the First Nations were ordered to amend their claim, adding the Crown, federal and provincial, as defendants.

Amended Notice of Civil Claim

The First Nations filed their Amended Notice of Civil Claim in October 2016. It included allegations of duties and defaults on the part of the Crown defendants, including that the Crown failed to act on their fiduciary duty and other obligations to the First Nations to sufficiently control the water flows from the dam so as to preserve the fish and fishery in the Nechako River system.

Alcan and the Crown opposed certain amendments and sought declaratory relief because they believed the allegations to be vague and thus difficult, if not impossible, to enforce.

In reasons issued January 2019, the Supreme Court pointed out a number of obstacles it sees the First Nations having to overcome in order to establish that the relief they seek is appropriate. However, given that a full trial will be held to determine whether the relief proposed by the First Nations is available as a matter of law, it is not clear at this stage that the relief sought by the First Nations is bound to fail. Ultimately, the court left all to be decided at trial.

What We've Learned

It is well settled that an action for tort can be brought by a First Nation against a private defendant for harm done against proven or recognized Aboriginal rights and title lands. This case confirms that an action in tort can be brought by First Nations against a private defendant for damages for harm against asserted, but not proven, Aboriginal rights and title to lands. Where Aboriginal rights and title have not been proven, it may be possible to bring an action without adding the Crown as a party; however, adding the Crown as a defendant will ensure that all issues are dealt with in one action.

Conclusion

This case presented an opportunity for a new and unique development in the law in two ways. Firstly, it was an action for damages brought by First Nations solely against a private defendant for alleged harm to proprietary interests based on a claim of asserted aboriginal rights and title. Secondly, the issue of how Aboriginal rights and title, which are claims against the Crown, would be proven in such an action, if the Crown were not a party, remained an open question that was ultimately resolved in this case through applications to the courts.

We expect to see developments in the laws that further define the intersection of Aboriginal rights law and private tort law in future.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions