In its January 7, 2022 decision in Thomas and Saik'uz First Nation v. Rio Tinto Alcan Inc., the British Columbia Supreme Court (Court) affirmed the plaintiffs' Aboriginal right to fish but denied their claim for relief against the private owner of a hydroelectric dam because it was constructed and operated strictly in accordance with applicable laws and permits. This case will have significant implications for owners and operators of historic infrastructure in Indigenous territory across Canada.
OVERVIEW OF THE CLAIM
In the 1950s, the government of British Columbia (B.C.)
authorized the predecessor to Rio Tinto Alcan Inc. (RTA) to
construct the Kenney Dam (the Dam) to produce hydropower for its
aluminum smelting facility. The construction of the Dam and the
river regulation resulting from its operation has had a significant
impact on the flow of the Nechako River, a large tributary of the
Fraser River.
The two plaintiff First Nations (the First Nations) have used the
Nechako River for fishing and sustenance and have occupied the
surrounding region since time immemorial. They claim Aboriginal
rights to fish the Nechako River and Aboriginal title to the
surrounding watershed.
The First Nations alleged that RTA's construction and operation
of the Dam has significantly impacted fish populations in the
Nechako River. On the basis of their Aboriginal rights, they
claimed the tort of nuisance (interference with property rights)
and wrongful interference with riparian rights (relating to
ownership of lands abutting water). The First Nations were seeking
an order compelling the defendants to "reinstate the
functional flows that make up the natural flow regime of the
Nechako River".
The action was initiated by the First Nations in 2011 with RTA as
the sole defendant. RTA attempted to have the action dismissed on
the basis that any claims could only be brought against the Crown,
not a private party. In a significant decision in its own right in
2015, the B.C. Court of Appeal determined that the claims against
RTA could proceed without the Crown as a party. RTA subsequently
applied to have B.C. and Canada added as defendants.
ANALYSIS
While the Court affirmed some of the First Nations' rights and held that such rights can result in an order against private actors, it dismissed the First Nations' claim because RTA's interference with the First Nations' rights was expressly authorized by the federal and provincial governments. Any remedy for the First Nations can only be against the Crown, which the Court confirmed has a duty to protect their Aboriginal right to fish.
1. Aboriginal Rights as Foundation for Actions
The Court held that any substantial and unreasonable
interference with use or enjoyment of Aboriginal rights can result
in liability of private entities for nuisance, including a
potential award of damages.
In this case, the Court affirmed the First Nations' Aboriginal
right to fish the Nechako watershed for food, social and ceremonial
purposes. However, the Court dismissed the First Nations'
claims to Aboriginal title, primarily because of the absence of
evidence from other Indigenous nations who may have overlapping
Aboriginal title claims to the areas claimed by the First Nations.
This provides an important marker for future Aboriginal title
cases, and is consistent with past court decisions.
2. Claims may be Brought Against Non-Government Entities
Most Indigenous claims are formally brought against the Crown,
and typically seek to overturn government approvals of projects.
Industry proponents are often key participants in such litigation
(defending their project approvals), but not typically the subject
of a court order.
In this case, the First Nations sought an order that RTA implement
a particular flow regime that would restore the Nechako River to a
more natural state. The Court found that the evidence demonstrated
that the construction and operation of the Dam and resulting river
regulation significantly altered certain fish populations within
the Nechako watershed, and that these changes had profound impacts
on the First Nations. Unless those impacts had been fully
authorized, the Court would have found RTA liable and imposed a
remedy.
3. Defence of Statutory Authority
The defence of statutory authority is available where the
defendant's conduct is authorized by government, or is the
inevitable result of exercising a power authorized by government.
The defence only applies if the defendant acted strictly in
accordance with its authorizations and its actions could not be
exercised in another way that avoids harm.
In this case, the Court determined that all aspects of the
construction of the Dam, the manner in which it was operated and
the scope of the resulting river regulation were expressly
authorized by the provincial and federal governments. RTA always
operated strictly within the parameters of its permits except where
expressly authorized by a governmental agency.
As a result, although the Dam impacts the First Nations'
rights, those impacts were inevitable due to the government
approvals of the project, not RTA's noncompliance with any
statutory permissions. On that basis, RTA is entitled to operate
the Dam and is not liable to the First Nations.
TAKEAWAYS
This case offers important guidance to land users whose actions
impact Aboriginal rights. To the extent that those actions are
authorized, and the land user strictly complies with its
authorizations, the Court's decision offers protection from
liability for those impacts. However, to the extent a land user
strays outside its authorizations, and the non-compliance results
in impacts to Indigenous people, those impacts could result in
liability to the land user.
More broadly, the decision of the Court provides further support
for the position that liability for infringements of Aboriginal
rights and title will, in most cases, rest with the federal and
provincial governments. While the Court is clearly sympathetic to
the challenges faced by Indigenous nations in establishing and
enforcing their rights, it is equally uncomfortable imposing
liability on private parties that have relied on government
actions. The case provides an early view into how Canadian courts
may ultimately handle the conflict between private property
interests and Aboriginal title claims, which has not been addressed
in the cases to date.
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