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.
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.
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.
For more information, please contact:
Roy Millen 604-631-4220
Sam Adkins 604-631-3393
Caolan Lemke 604-641-3364
or any other member of our Indigenous group.
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