Aboriginal Rights and Industry Liability: Important Case Update
On January 7, 2022, the British Columbia Supreme Court released its decision in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15. Saik’uz has broad implications for Indigenous peoples and private actors in the natural resource industry. For the first time, the Court recognized that the violation of Aboriginal rights can be used to sue a private actor in nuisance – in this case, Rio Tinto Alcan (“RTA”). However, the Court also found that RTA could rely on its government-issued licences as a full defence to this claim because the nuisance at issue was the “inevitable result” of activities that the Province had expressly permitted.
As a result, this case represents two important developments in natural resource and Aboriginal law:
On the one hand, the Court’s recognition of private nuisance based on Aboriginal rights provides Indigenous peoples with a broad foundation to make claims against private actors. Such claims do not need to be based on interests in reserve or title lands.
On the other hand, so long as private actors act in strict compliance with their provincial authorizations, they may use statutory authority as a robust defence – in which case the government may be found liable for impairment of Aboriginal rights, if such an impairment has occurred.
If you would like more details on how the Court reached these conclusions, please click on "Detailed Case Discussion" below.
Detailed Case Discussion
The Saik’uz and Stellat’en First Nations sued RTA in nuisance and for breach of riparian rights on the basis of their Aboriginal title and right to fish. They claimed that RTA’s construction and operation of the Kenney Dam (which was constructed in the 1950s) had negatively impacted the fish population in their traditional territories and reserve lands. In defence, RTA argued successfully that the construction of the Kenney Dam and operation of the reservoir were explicitly and validly authorized by the provincial government and any harm to the fish was an inevitable result of those authorized activities. This statutory authority immunized RTA against any liability for the inevitable harm its dam and reservoir caused to the river or fishery within it.
Private Nuisance Based on Aboriginal Rights
The Court found that the plaintiff First Nations have a constitutionally recognized Aboriginal right to fish for food, social, and ceremonial purposes in the impacted Nechako watershed, and that their right was significantly impaired by the operation of the Kenney Dam and the resulting decline in fish population. Further, the Court found, as a matter of law, that a private actor can be held liable for nuisance to a First Nation on three basis: (1) the First Nation’s interest in and occupancy of reserve lands; (2) their Aboriginal title; and (3) their Aboriginal fishing rights. These findings represent an expansion of nuisance law, finding for the first time that it can be grounded in a First Nation’s Aboriginal rights.
Historically, nuisance claims have been grounded in a land right. In Saik’uz, RTA had argued that nuisance could not be extended to an Aboriginal fishing right, in part because such a right did not encompass a right to land. In rejecting that position, the Court held:
"[W]here an Aboriginal right to fish is being exercised by a member of the Indigenous group at a traditional fishing site “owned” by them elsewhere in their traditional territory [i.e. outside of reserve or title land], whether standing on the shore or fixing nets in the water or to the river/lake bed, the same remedy should lie for the same type of interference, simply as a matter of principle (and one which also incidentally accords with UNDRIP).
I have no hesitation in concluding that the plaintiffs’ Aboriginal right to fish is a legally sufficient foundation for an action in private nuisance. This is so regardless of whether that right is exercised in the waters within or adjacent to the lands now comprising [the reserves] and whether or not they hold title to those lands and waterbeds."
Although the Court specifically addressed the plaintiffs’ Aboriginal right to fish, it is very possible that a future court will find that other Aboriginal rights (e.g. to hunt or gather) are capable of grounding a nuisance claim, especially when those rights are “intimately related to a particular piece of land” as the plaintiffs claimed in Saik’uz.
Significantly, the Court held it was appropriate to develop the common law in this manner in order to address the history of systemic discrimination and harm caused to Indigenous peoples. Justice Kent made powerful statements in that regard, reflecting a growing trend in Canada’s courts to recognize these historic impacts and the need for reconciliation with Indigenous peoples:
"The legacy of 150 years of systemic discrimination and attempted assimilation is bleak and intractable. It has resulted in cultural erosion and alienation, relentless intergenerational trauma, and socio-economic marginalization. While representing only five percent of Canada’s population, Indigenous people endure massively disproportionate rates of poverty, interpersonal violence and family breakdown, addiction and substance abuse, youth suicide, lower levels of education, and higher unemployment. Many reserves lack basic human needs such as decent housing and clean water to drink. And mostly as a cumulative result of the foregoing, Indigenous people are hugely overrepresented in both the child welfare and the criminal justice systems of this country.
Given these tragic realities, I have no hesitation whatever in making incremental extensions of the common law that might advance some small redress for Indigenous peoples, including, of course, the plaintiffs in this case."
It is reasonable to expect future courts to adopt similar reasoning when asked to further develop the common law in relation to Indigenous peoples.
Defence of Statutory Authority
Although the Saik’uz decision has expanded nuisance law, it also makes it clear that a private actor may rely on its provincial authorizations as a full defence to such claims, if the harm at issue was an “inevitable result” of the exercise of provincially authorized activities. In this case, the Court found that RTA’s installation and operation of the Kenney Dam and related reservoir strictly complied with all regulatory requirements imposed upon it by the Province. Since the damage to the First Nations’ fishery was the inevitable result of those authorizations, the RTA could not be held liable to the plaintiffs.
In Saik’uz, the plaintiffs argued that RTA could have changed or curtailed its business priorities and practices to reduce or eliminate the harm caused to the First Nations’ fish/fishery, and therefore the defence didn’t apply. The Court disagreed:
"RTA is expressly authorized to store and use water for maximum hydroelectricity production purposes, subject only to water releases into the Nechako as mandated by the 1987 Settlement Agreement and the Technical Committee of the NFCP. If doing so inevitably causes harm to the fish/fishery, as I have found to be the case, the defence of statutory authority applies. RTA may have very good business reasons for changing its operations—accommodating reasonable requests of First Nations or mitigating flood risk to Vanderhoof may be good examples—but even if inevitable harmful impacts occur, it is not obliged to make such changes so long as it is acting within the constraints of its lawfully authorized activity."
The Court also rejected the plaintiff First Nations’ argument that, for constitutional reasons, RTA could not rely on authorizations from the provincial government to defend against the impairment of Aboriginal rights. Instead, the Court found that RTA was entitled to rely on government authorizations as a defence. By insulating provincial authorizations from constitutional scrutiny in private actions, the Court ensured that private actors would continue to be able to rely on the defence of statutory authority even if the underlying legislation may be constitutionally suspect.
This aspect of the Saik’uz decision highlights the importance of obtaining and complying with all provincial and federal authorizations required to support natural resource activities. Provided those authorizations are in place, and the operator complies, it should be shielded from claims of nuisance that are an “inevitable” result of those authorized acts.
For Indigenous peoples and government actors, it also underscores the importance of assessing any possible impairment of Aboriginal rights at the licensing stage of natural resource activities, and the potential repercussions of inadequate consultation (both historic and present).
Finally, the Saik’uz decision is notable for reinforcing the principle that Indigenous claimants may seek damages against the Crown in circumstances where the Crown authorizes private activity that infringes their Aboriginal rights. In this case, the plaintiff First Nations had not sought such damages, so none were awarded. However, this case serves as a reminder (and perhaps a warning to governments) that such claims are possible and likely to be awarded in the future.
What Comes Next?
The parties have until February 7, 2022 to appeal this decision. If it is appealed, it will remain good law until and unless the BC Court of Appeal rules differently. We will continue to monitor developments in this case.
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If you have any questions about the foregoing, please do not hesitate to reach out to us.
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