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A Dam Nuisance – Addressing Private Companies’ Violations of Aboriginal Rights and Title through Tort

By Allison Sproule, Cam Pollock, and Erin Reimer - January 31, 2022 under Business Advisory

A Case Review: Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15

Following a decades-long public dispute and eleven years of litigation, the fight for the Nechako River watershed may, at last, be approaching an end. On January 7, 2022, Justice Kent for the BC Supreme Court (“BCSC”) in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15, ruled that, while Saik’uz and Stellat’en First Nations’ Aboriginal rights to fish in the Nechako River watershed were infringed by the operation of the Kenney Dam (the “Dam”),  Rio Tinto Alcan Inc. (“Rio Tinto”) had a valid defence to the claims brought by the Nations by virtue of the provincial and federal governments’ authorization of the Dam.

As plaintiffs, Saik’uz and Stellat’en sought an injunction requiring Rio Tinto to restore the natural flow of the Nechako River (the “Nechako”). Rio Tinto had dramatically altered the flow of the Nechako by diverting water away from the river to provide hydroelectric power to their aluminum smelter in Kitimat. Changes in water flow wrought havoc on fish habitats downstream and consequently impacted the plaintiffs’ ability to fish.

While the Nations were not granted the orders sought, several important findings were made in their favour. Notably, the BCSC affirmed that both the provincial and federal governments have obligations to protect the plaintiffs’ Aboriginal fishing rights and found that First Nations may bring private law claims for damages against companies and individuals who infringe their Aboriginal rights. The BCSC also all-but invited Saik’uz and Stellat’en to commence an action for Aboriginal rights infringement and breach of fiduciary duty against the provincial and federal governments related to their authorization of the Dam and the ongoing harm suffered by the Nations as a result.

Key Takeaways

While Saik’uz and Stellat’en were ultimately unsuccessful in obtaining an order to restore the flow of the Nechako River, this case resulted in the following important findings:

  • Indigenous plaintiffs can advance private law claims against non-government entities for breaches of their Aboriginal rights and title without first proving those assertions in separate litigation. However, non-government entities may not be liable for breaches of Aboriginal rights if their actions were authorized by the provincial or federal governments.
  • The Saik’uz and Stellat’en First Nations have an Aboriginal right to fish for food, social, and ceremonial purposes in the Nechako River watershed, which has been infringed by the operation of the Dam.
  • The honour of the Crown requires the provincial and federal governments to protect that Aboriginal right.

It is uncertain whether the plaintiffs will appeal this decision and continue their decades-long struggle. For now, the Saik’uz and Stellat’en First Nations will continue to suffer the impacts to their Aboriginal rights, and whether the provincial and federal governments will act to protect those rights remains to be seen.

Background

The Saik’uz and Stellat’en First Nations have relied on and stewarded the Nechako since time immemorial, and the river is an important source of salmon and sturgeon for both Nations. In the 1950s, the Province authorized the Aluminum Company of Canada (now Rio Tinto) to build the Dam to generate power for its aluminum smelting operations in Kitimat. As part of that project, BC authorized Rio Tinto to divert water away from the Nechako, toward the Kitimat power facility, and to sell any excess power it produced to third parties.

In the late 1970s, Rio Tinto’s power facilities were connected to the provincial power grid and BC Hydro agreed to purchase all of Rio Tinto’s excess power. With a potentially lucrative market for excess power, Rio Tinto was incentivized to divert increasing volumes of water toward Kitimat and away from the Nechako. In a turn of poor luck, a severe drought began around the same time.

As the diversions and drought caused critically low water flows in the Nechako, concerns about fish mounted. Interfering with the natural water flow of a river can have devastating effects on fish populations. For example, reducing the amount of water in warmer months—when salmon are migrating—can cause river temperatures to rise, spawning the proliferation of fish-killing parasites and bacteria. Reduce flows also decrease the size of the river and thus the available fish habitat.

Between the 1980s and today, various disputes arose over Rio Tinto’s water use on the Nechako, none of which restored the flow of water to anywhere close to natural levels.

The Current Case – Procedural History

Saik’uz and Stellat’en filed a suit against Rio Tinto in 2011, alleging: (1) public and private nuisance; and (2) wrongful interference with riparian rights. This was a novel claim: it was the first time any First Nation had tried to bring a tort claim against a private party without involving the government or first proving underlying Aboriginal title.

The first major legal development to result from this case came early on, after Rio Tinto attempted to have the case dismissed on summary judgment. Though they were successful at the BC Supreme Court, the BC Court of Appeal overturned that ruling in 2015 (the “2015 Appeal Decision”); Justice Tysoe held that there was no reason to require First Nations to obtain a declaration of Aboriginal rights and title from the Crown before making a claim against a private party based on breaches of their rights and title. Leave to appeal to the Supreme Court of Canada was refused.

In 2016, Rio Tinto applied to have the provincial and federal governments added as defendants to the litigation, with their consent. The plaintiff First Nations unsuccessfully opposed this application, and ultimately amended their claims to include allegations that, among other things, Canada had and continues to have an obligation to protect their Aboriginal fishing rights, and that Canada and BC failed to uphold their fiduciary duties to the plaintiffs. The plaintiffs sought relief against the provincial and federal governments based on the alleged fiduciary duties, which would have required the Crowns to effectively restore the flow of the Nechako to the point that the plaintiffs’ interests were no longer impacted.

The 2022 Decision

The primary issues at trial were:

  • whether there was a decline in the Nechako River’s fish populations that was attributable to Rio Tinto’s diversion of water;
  • whether the loss of the fishery was actionable by the plaintiffs;
  • whether a claim of Aboriginal rights and title can ground a claim in the tort of nuisance or breach of riparian rights; and
  • whether those torts could be proven and defended against.

By the time of trial, the defendants had effectively acknowledged the plaintiffs had an Aboriginal right to fish on the Nechako; however, Rio Tinto argued that private rights of action based on section 35 Aboriginal rights are not known at common law and that Aboriginal rights do not bestow a proprietary interest in land sufficient to ground a claim in nuisance. Justice Kent, addressing the first point, turned to Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73 for the proposition that private parties can indeed be held liable for the infringement of Aboriginal rights, and stated that interference with Aboriginal rights can ground a common-law action against non-government entities.

Addressing the question of whether Aboriginal rights and title could ground a claim in nuisance, the Court first referred to the 2015 Appeal Decision. In that decision, Justice Tysoe stated that Saik’uz and Stellat’en’s interests in their reserves, their Aboriginal rights to fish, and their asserted Aboriginal title might each form the basis for a claim in nuisance, which at common law centers on interference with a person’s use and enjoyment of land to which they have an exclusive possessory right.

The BCSC ultimately agreed. Justice Kent found that both the plaintiffs’ right to exclusive possession of their reserves and their Aboriginal title was sufficient to ground such an action. Justice Kent stated that the beneficial interest to possess, manage, and enjoy Aboriginal title land, when coupled with actual use or possession, meets the common law requirements for an action in nuisance. He further stated that “to suggest otherwise is absurd and, in my opinion, disrespectful of the rights of Indigenous peoples respecting their traditional territories…”

The Court also found that the plaintiffs’ Aboriginal right to fish could ground an action in nuisance, agreeing with the plaintiffs’ submissions that the sui generis nature of Aboriginal rights, their important role in advancing reconciliation and ensuring cultural security and continuity, and their close relation to a particular piece of land, requires that an action in nuisance should be supportable where there is an unreasonable interference with the Aboriginal right tor the associated lands. Justice Kent rejected Rio Tinto’s argument that the plaintiffs had no ownership over or proprietary right to the fish themselves as a position that “conveniently ignores UNDRIP’s declaration.”

Factually, the BCSC concluded that the operation of the Dam had caused or contributed to the decline of the Nechako’s fish populations and that those declines resulted in serious impacts to the plaintiffs’ ability to sustain themselves, and to practice, maintain, and transmit their culture. As such, Rio Tinto’s alterations to the Nechako constituted private nuisance via an unreasonable interference with the Saik’uz and Stellat’en’s Aboriginal rights. However, the question of liability remained. Here, Rio Tinto’s defence of statutory authority succeeded: because the Province authorized the design, construction, and operation of the Dam, including the level of water flows, Rio Tinto could not be held responsible for any harm it caused.

Unfortunately for the plaintiffs, their claim that Rio Tinto breached their riparian rights also failed. Justice Kent held that common law riparian rights had been extinguished by provincial legislation and declined to find that the plaintiffs held riparian rights grounded in Aboriginal title on the basis of insufficient evidence of pre-contact or pre-Crown sovereignty, control, or ownership of the water.

In conclusion, the BCSC held that if the approval of the Dam unjustifiably harmed the plaintiffs’ Aboriginal interests, they could seek damages from the Crown. However, as the plaintiffs had not sought damages against the Crown—instead asking only for the Nechako’s natural water flows to be restored—they were limited to declaratory relief.  The BCSC determined that ordering the Crown to ensure that the natural water flows of the Nechako were restored would inappropriately equate to an order made against Rio Tinto, who was not found liable.  Nevertheless, the declaration by the BCSC that both the provincial and federal governments have an obligation to protect Saik’uz and Stellat’en’s Aboriginal right to fish in the Nechako River watershed may still result in the restoration of the natural water flows, as the Crown suggested that it would “not ignore” the BCSC’s findings regarding the Nations’ Aboriginal rights.

Want More?

If you have any questions or comments relating to what we discussed above, feel free to reach out to Erin Reimer from our Litigation Group.



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