Saik'uz First Nation v Rio Tinto Alcan Inc

Background

The appellant Carrier First Nations, Saik’uz First Nation and Stellat’en First Nation, claim that they have used and exclusively occupied portions of the Central Carrier territory, which includes the Nechako River and lands along the banks of the river, since the date on which British Sovereignty was asserted over British Columbia in 1846. They assert Aboriginal rights and title to these lands and the bed of the Nechako River, and claim proprietary interests in the river’s waters and resources. They also assert that in 1846 they used and exclusively occupied specific sites along the Nechako River and its tributaries for fishing purposes, claiming proprietary rights to these fisheries as well. Furthermore, they argue that they are the lawful owners and occupiers of reserves along the banks of the Nechako River and on this basis they claim riparian rights at common law, including the right to the natural flow of water undiminished in quality and quantity.

In the early 1950s, the predecessor of the corporate respondent, Rio Tinto, constructed a hydroelectric dam on the Nechako River in northwestern British Columbia to provide power for an aluminum smelter in Kitimat. As a result of the dam’s impact on water flow in the Nechako River, a lawsuit arose in the 1980s between the federal Minister of Fisheries and Oceans, the Province and the respondent. A settlement from this litigation in 1997 created certain obligations for the respondent to follow in terms of how it manages water flow from the dam and these obligations are set out in the current water licence under which the dam is operated.

Underlying action

In 2011, the appellant First Nations commenced an action against the respondent in private and public nuisance and for breach of riparian rights as a result of the operation of this dam. The appellants also sought relief in the form of interlocutory and permanent injunctions against the respondent’s operation of the dam. The appellants claimed that the dam has significant adverse impacts on the Nechako River, including “alterations in the timing and quantity of water flow, impacts on water temperature, erosion of the banks, unnatural sedimentation in the river bed and interference with the surrounding ecosystem”. The appellants further argued that these alleged adverse impacts had negatively affected the fisheries resources in the Nechako River system, including pushing the Nechako River Sturgeon towards extinction. The appellants further claimed that these impacts resulted in interference with their ability to utilize fisheries resources, loss of use, enjoyment and value of the fisheries and lands subject to their Aboriginal title, and negative cultural impacts.

Decision of Chambers judge

The corporate respondent brought an application seeking an order for summary judgment against the appellants’ claim or, in the alternative, an order striking their pleadings for failing to disclose a reasonable cause of action. This application for summary judgment was based on the defence of statutory authority. The respondent argued that the act causing the nuisance at issue was authorized by statute and inevitably resulted from that authorization. The Chambers judge rejected this argument on the basis that there was no evidence that the respondent did not have any “practically feasible alternatives” to causing the nuisance.  However, the Chambers judge did allow the respondent’s application to strike the claim on the basis that the appellants needed to first prove their Aboriginal rights and title in an action against the Crown before bringing private law claims for harm to those rights against private parties such as the respondent.

Decision of Court of Appeal

The legal issue before the Court of Appeal was whether the notice of civil claim filed by the appellant First Nations failed to disclose any reasonable claim. The Court of Appeal noted that the relevant test is whether “it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action” or “the claim has no reasonable prospect of success”. Furthermore, it cautioned that courts “must err on the side of permitting a novel but arguable claim to proceed to trial” where the claims at issue have not been previously recognized in law.

In addressing the claims based on the appellants holding Aboriginal title and Aboriginal fishing rights within their territory, the Court of Appeal noted that they pleaded sufficient facts to ground these claims. They had also alleged serious impacts to the Nechako River fisheries resources as a result of the dam. Consequently, it was not plain and obvious that they did not have a reasonable cause of action in private nuisance grounded in their Aboriginal rights and title.

Similarly, the Court of Appeal found that it was at least arguable that the dam resulted in “unreasonable interference with the public’s interest in harvesting fish from the Nechako River” and that the appellants suffered special damage as a result of the dam’s operation. Consequently, it was not plain and obvious that the appellants had no reasonable cause of action in public nuisance.

With respect to the appellants’ asserted riparian rights, the Court of Appeal first addressed the argument that they had riparian rights as a component of Aboriginal title. The Court of Appeal found that it was arguable that Aboriginal title could include such water rights and that British Columbia’s Water Act, which vests all fresh water rights in the Province, could be constitutionally inapplicable to any such water rights. Consequently, it was not plain and obvious that the appellants had no reasonable cause of action for interference with riparian rights flowing from their Aboriginal title.

The Court of Appeal noted that the chambers judge had struck these claims premised on Aboriginal rights and title because the appellants’ Aboriginal rights and title had neither been accepted by the Crown nor proven to exist by judicial declaration. The Court stated that the effect of that ruling was to create “a unique pre-requisite to the enforcement of Aboriginal title and other rights”, which “would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are so declared or recognized”. The Court held that this unique pre-requisite was not justified because the law is clear that Aboriginal rights and title do exist prior to any declaration or recognition and all a court declaration or Crown acceptance does is “identify the exact nature and extent of the title or other rights”.

The Court of Appeal held that whatever Aboriginal rights the appellants may have these rights are already in existence and there is no reason to require them to first obtain a court declaration in an action against the Province before relying on these rights in other actions, such as the appellant First Nations’ claims against the corporate respondent. Like any other litigants, the Court held that Aboriginal peoples should be permitted to prove any rights they need to in order to succeed in their claim against another party. The Court of Appeal stated that Aboriginal peoples are part of Canada’s community and “should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights”. The Court opined that setting a different standard for the enforcement of Aboriginal peoples’ rights was “not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms”.

The Court of Appeal found that the decision of the chambers judge was out of keeping with the case law on Aboriginal rights and title, which included several well-known examples of Aboriginal litigants being permitted the opportunity to attempt to prove their Aboriginal rights within the claim or defence they were putting forward. The Court also noted past cases in which injunctions were sought against private parties on the basis of unproven Aboriginal rights and it was held that there was a fair question to be tried. Furthermore, the Court noted that the reasoning of the chambers judge had been recently rejected in a decision of the Quebec Superior Court that was then upheld on appeal to the Quebec Court of Appeal.

With respect to the appellant First Nations’ riparian rights claims that were grounded in their interests in their reserve lands, on the other hand, the Court of Appeal found that the reserves were created after the Province had already abolished almost all riparian rights for landowners. As a result, the Court held that when these reserve lands were subsequently transferred from the Province to the federal government they did not include riparian water rights. On this issue, the Court of Appeal upheld the chambers judge’s finding that there was no reasonable prospect of success for this ground for claiming interference with riparian rights. The Court of Appeal did, however, hold that it was not plain and obvious that the appellants could not bring a claim in private nuisance based on having a right to exclusive possession of their reserve lands.

The Court of Appeal also agreed with the chambers judge’s reasoning for rejecting the respondent’s application for summary judgment on the basis of a defence of statutory authority. Furthermore, the Court rejected the respondent’s argument that the action was a collateral attack on the validity of its water licence. The Court noted that the appellants were not directly attacking the validity of the water licence in the action; rather, the licence was only at issue as a result of the respondent’s defence of statutory authority.