Written By Claire Lingley, Radha Curpen, David Bursey and Sharon Singh
On January 7, 2022, more than a decade after the claim was first filed, the B.C. Supreme Court (BCSC) released its decision in Thomas and Saik'uz First Nation v Rio Tinto Alcan Inc. The decision considers the Saik'uz First Nation and Stellat'en First Nation's (the Nations) claims that Rio Tinto Alcan Inc.'s (Rio Tinto) installation and operation of the Kenney Dam and related Nechako Reservoir interfered with the Nations' Aboriginal rights so that Rio Tinto was liable to the Nations for the tort of private nuisance, public nuisance and a breach of riparian rights.
This case deals with novel issues since the Nations claimed remedies against Rio Tinto based on common law causes of action founded on Aboriginal rights that had not yet been proven or recognized in treaty. The Nations did not seek remedies against the Crown, but focused directly on Rio Tinto's operations.
The Court found that although the installation and operation of the dam and reservoir had caused a decline in fish population in the Nechako River watershed and interfered with the Aboriginal rights of the Nations, Rio Tinto was immunized from liability under the defence of statutory authority.
The Court, however, confirmed that non-governmental parties, whether corporate entities or individuals, are not immunized from potential liability claims founded on alleged breaches of Aboriginal rights.
The Nechako River is in the interior plateau of British Columbia and is one of the largest tributaries to the Fraser River. The Court found that two Nations have used the Nechako River for fishing and sustenance "since time immemorial."
In 1950, the Government of British Columbia authorized Rio Tinto to build hydropower facilities to power an aluminum smelter that Rio Tinto would build in Kitimat. The hydropower facilities included the Kenney Dam and other works to create the Nechako Reservoir, which were used to store and divert Nechako waters through a 16 km tunnel at the western end of the reservoir to power generating turbines in the Kemano watershed. The Nations claim the construction of the dam, the diversion of stream flow and subsequent regulation of stream-flow downstream of the Nechako Reservoir has profoundly affected the Nechako River and the fish and related fishery, substantially reducing the population of the Nechako White Sturgeon, as well as Sockeye and Chinook salmon.
History of the Case
In 2011, the Nations brought an action against Rio Tinto in private nuisance, public nuisance and breach of riparian rights based on their interference with the Nations' Aboriginal title, Aboriginal rights and propriety interests in reserve lands. The Nations sought an order from the Court to compel Rio Tinto and both levels of government to restore the water flow in the Nechako River, prevent further damage to the fishery and restore the abundance of both the Nechako White Sturgeon and salmon.
In 2013, Rio Tinto applied for summary judgment to dismiss the action on the basis that statutory authority was a full defence to the claim and, in the alternative, that the claim did not disclose a reasonable cause of action. The BCSC dismissed the summary judgment application, finding that claim raised a genuine issue for trial on the defence of statutory authority. However, the Court also dismissed the action against Rio Tinto in its entirety, holding that Aboriginal title and rights must first be proven in litigation involving the Crown before any claim for nuisance or riparian rights can be asserted.
The B.C. Court of Appeal (BCCA) overturned the BCSC's decision and allowed the Nations' claims to proceed, holding that tort claims based on harm to asserted (but unproven) Aboriginal rights and title should not be struck as disclosing no reasonable cause of action, and the Nations should be allowed the opportunity to prove their case. The Court of Appeal did, however, strike the claim for interference with riparian rights based on the Nations' interest in reserve lands. The Supreme Court of Canada denied leave to appeal the B.C. Court of Appeal ruling.
The subsequent trial of the issues commenced in October of 2019 and concluded in January of 2021, with 151 days of trial.
Aboriginal Rights as the Basis for a Nuisance Claim
The Nations' claim against Rio Tinto was based on the common law causes of action of the tort of nuisance and breach of riparian rights. The primary emphasis was on the tort of nuisance, the essence of which is interference with property rights. A defendant will be found liable for nuisance if the claimant can show that the defendant has caused a substantial and unreasonable interference with the claimant's use or enjoyment of land without express, statutory authorization.In this case, the Nations grounded their nuisance claim on their assertion that Rio Tinto's interference with the Nations' interest in their reserves, the Nations' Aboriginal rights to fish, and the Nations' Aboriginal title (if established), including the riverbeds and lake beds where fishing has traditionally occurred.
In determining whether the Nations had established the tort of private nuisance, the Court held the following:
- The plaintiffs have proven their Aboriginal right to fish in their respective areas of the Nechako watershed;
- It would be unfair to make “findings” on Aboriginal title since the overlapping title claimants were not parties or witnesses in this proceeding. (However, the Court did note that the evidence supported findings of title in favour of the Nations in some instances, in the event that the Court is wrong to decline to rule on title because of the procedural unfairness);
- The Court deferred to make any finding on Aboriginal title to submerged riverbeds, explaining that the law has not been developed in this area;
- The Nation's interest in Indian reserve land cannot support any claim for riparian rights. However, the right to fish in adjacent waters is a necessary incident of Aboriginal title to land, and particularly so where such fishing was the primary source of sustenance for the First Nations concerned;
- Aboriginal rights can be the foundation for a civil action against non-government entities;
- While the constitutional status of Aboriginal rights may trigger duties to consult and accommodate by the provincial and federal governments, it "does not mean that third parties, whether corporate entities such as [Rio Tinto] or individuals, are somehow immunized from tort liability for claims founded on Aboriginal interests";
- The Nations have a constitutionally recognized Aboriginal right to fish the Nechako River watershed for food, social and ceremonial purposes—this right can ground a claim in nuisance; and
- Rio Tinto's installation of the Kenney Dam and operation of the Nechako Reservoir, and the resulting effects on the river's natural flow regime, has harmed the abundance and health of the fish population in the watershed. This interference caused or contributed to a substantial decline in the population of both Nechako White Sturgeon and Sockeye salmon, which substantially affected the Nations as an Indigenous community.
Ultimately, the Court found that Rio Tinto would be liable to the Nations for the tort of private nuisance, if not for the fact that Rio Tinto actions were authorized by government permits and the changes to the Nechako River were an inevitable consequence of the authorized action. Therefore, Rio Tinto's actions were within the defence of statutory authority.
The Defence of Statutory Authority
The defence of statutory authority is a well-established and fundamental principle of law which holds that an act which is authorized by statute cannot be tortious. Private parties can rely on the defence so long as the work is carried out in accordance with the authorizing statute, Sutherland v Vancouver International Airport Authority, 2002 BCCA 416.
In this case, the Court held that Rio Tinto's construction of the Kenney Dam and operation of the Nechako Reservoir was authorized by both levels of government, and Rio Tinto had always operated within the parameters of such authorizations. Thus, while the Court held that the Nations' Aboriginal rights provide a valid legal foundation for the claim of nuisance, the claim was subject to the common law defence of statutory authority, and could not succeed against Rio Tinto. The Nations may only properly make that claim against the Crown, but the Nations did not make a claim for damages against the Crown.
While the Court found no liability or remedy against Rio Tinto, it did issue the following declaration in relation to the Crown:
- The plaintiffs have an Aboriginal right, as claimed, to fish for food, social and ceremonial purposes in the Nechako River watershed; and
- As an incident to the honour of the Crown, both the provincial and federal governments have an obligation to protect that Aboriginal right.
This decision has potential implications for companies and industries working with First Nations that are worth noting. Nonetheless, the defense of statutory authority was re-affirmed by the Court. Accordingly, non-government entities—individuals and companies—may not be held liable for infringing on First Nation's Aboriginal rights when those actions are authorized by government permit.
The Court urged both the Crown and Rio Tinto to consider a "reassessment" of their conduct "in light of the new reality." All companies should assess their operations and conduct, and be diligent in designing and managing their operations and developments to respect Aboriginal rights.
While this case touched on many novel issues, and the Court noted that it is without precedent in Canada (at para 615). The Court also noted that the case "will almost certainly be appealed" (at para 170), which the Nations are. In the end, the result was based on narrow grounds—the applicability of the statutory authority defence. Much of the discussion on other novel points in the case did not determine the outcome, and were added for the benefit of any appeal. So, the law in those areas remains unsettled. The appeal of this case will add to the discussion and understanding of those issues.