The Supreme Court of British Columbia Court Strikes First Nations’ Nuisance Claim Against Industry: Thomas v. Rio Tinto Alcan Inc.
On December 13, 2013, the Supreme Court of British Columbia (BCSC) released Thomas v. Rio Tinto Alcan Inc. (Thomas).1 On an application by Rio Tinto Alcan (Alcan), the BCSC struck an action for injunctive relief commenced by two First Nations against Alcan alleging nuisance and breach of riparian rights on the basis of the First Nations’ asserted but unproven Aboriginal rights and title.
Thomas confirms that in British Columbia, asserted but unproven Aboriginal rights and title are not sufficient interests in land or water at law to sustain an action in nuisance against a private third party; such rights must first be recognized or proven to form the basis of a claim. Thomas also reaffirms the long-standing principle that the Crown, rather than a private third party, is the appropriate adversary to respond to claims of Aboriginal rights and title. The BCSC’s findings regarding the limitations of the defence of statutory authorization also provide a cautionary lesson for industry actors whose operations, while permitted at law, may nevertheless result in impacts to others.
This decision arose from a civil action (Claim) commenced by Saik’uz First Nation, Stellat’en First Nation and their respective elected chiefs, Jackie Thomas and Reginald Louis (Plaintiffs), against the defendant, Alcan. The Plaintiffs assert Aboriginal rights and title along the Nechako River in northwestern British Columbia, as well as proprietary interests in the lands, waters and resources of the Nechako, including fisheries. The Plaintiffs alleged that Alcan’s operation of the Kenney Dam (Dam) since 1952 had diverted and altered the water flowing to the Nechako, resulting in significant adverse impacts on the Nechako’s waters and tributaries, and in turn on the Plaintiffs’ fisheries resources. The Plaintiffs claimed that these impacts unreasonably interfered with their proprietary rights and interests, including their riparian rights to the Nechako waters.
In their Claim, the Plaintiffs sought (i) an interim injunction restraining Alcan from continuing the alleged nuisance and interfering with the Plaintiffs’ riparian rights, and (ii) a permanent injunction restraining Alcan from operating the Dam in such a manner as to cause similar nuisances to the Plaintiffs. Thomas addresses Alcan’s application for (i) summary dismissal of the Claim, and (ii) an order striking the Plaintiffs’ pleadings.
Application for Summary Judgment
The BCSC first considered whether Alcan was entitled to summary judgment on the basis of Alcan’s defence of statutory authorization.
Alcan argued that its defence of statutory authorization was a full defence to the Claim and there was no genuine issue for trial.2 It argued that all of its activities to store, divert and use the Nechako waters were authorized by a water licence (Licence) issued by the province of British Columbia, and that any impacts on the waters were the inevitable result of the Licence.3
The Plaintiffs submitted that the defence of statutory authorization was not suitable for consideration on an application for summary judgment because such consideration involved a question of mixed fact and law.4 They also submitted that this defence was premature because the parties had not yet undergone the discovery process to develop evidence. The Plaintiffs further argued that Alcan failed to establish that it had no alternative options for operating the Dam in a manner that would avoid the alleged nuisance.5
The BCSC noted that the defence of statutory authorization involves an inquiry into (i) whether the act causing the nuisance was expressly or implicitly authorized by statute; and (ii) if so, whether the nuisance was the inevitable result of the statutorily authorized action.6 The BCSC reasoned that if the nuisance is the same as the authorized act, then logically, the nuisance would be the inevitable result of the authorized action, and the defence would succeed.7
However, the BCSC held that in this case, the negative impacts alleged by the Plaintiffs differed from the acts authorized by the Licence. Specifically, the alleged adverse impacts caused by Alcan’s water diversion activities included increased water temperature, river bank erosion and adverse impacts on fisheries resources, including loss of fish spawning habitat. The BCSC held that Alcan failed to provide evidence that the impacts on the water and the fisheries were the inevitable result of the operation of the Dam and that no other practically feasible alternatives were available to Alcan.8
The BCSC held that evidence would be required for a court to weigh possible alternatives for operating the Dam; therefore, in this case, summary judgment was not an appropriate venue to determine whether Alcan’s defence would succeed. Ultimately, the BCSC was not satisfied that there was no genuine issue for trial in respect of the Claim, and it dismissed Alcan’s application for summary judgment on this basis.9
Application to Strike Pleadings
The BCSC next considered whether to strike the Plaintiffs’ pleadings on the ground that they disclosed no reasonable claim. The BCSC first considered whether the Plaintiffs, by virtue of their asserted but unproven Aboriginal title and rights had a cause of action in private or public nuisance or for breach of riparian rights. The BCSC then considered whether the Plaintiffs’ Claim had any reasonable chance of success on the basis of their reserve land interests.
A. Whether holders of unproven Aboriginal title and rights can claim nuisance or breach of riparian rights for interference with such claimed rights
Alcan applied to strike the Plaintiffs’ pleadings in their entirety on the basis that they disclosed no reasonable cause of action. Alcan argued that the Plaintiffs’ asserted but unproven rights and title were not a sufficient interest in the lands in question upon which to base a claim in nuisance.10 Alcan also claimed that the Plaintiffs were attempting to "shortcut" the process of reconciliation with the Crown in order to enforce their unproven rights.11
Alcan submitted that the establishment of rights is a necessary precondition to the enforcement of such rights against third parties. Since the Plaintiffs lacked proven rights, and the court would have no way to determine the scope of the alleged rights, the Plaintiffs would have no reasonable prospect of success.12
The Plaintiffs argued, however, that on an application to strike pleadings, the court is to assume that all the facts pleaded are true; therefore, such an application should not be granted without an opportunity for the facts to be proven at trial.13
The BCSC reviewed the law of nuisance, which addresses interference with a plaintiff’s rights in property. The tort of private nuisance arises when there is substantial and unreasonable damage to or interference with an owner’s use or enjoyment of land, and it is a tort committed against the land rather than against any person. Therefore, a plaintiff must have a proprietary interest (legal or equitable) in the affected land in order to have standing.14 The BCSC noted that the law of nuisance in British Columbia does not recognize a plaintiff with an unproven interest in land.15
The BCSC canvassed the small number of cases in which Aboriginal rights have intersected with the law of nuisance. However, in each case in which the Aboriginal claimants successfully asserted claims based on Aboriginal rights, the BCSC noted that such rights had already been registered or otherwise acknowledged by the Crown before the claims arose.16 Citing earlier decisions, the BCSC held that unless there is a finding of Aboriginal title, there must be a presumption that the lands not privately held are Crown lands.17 The BCSC also noted issues with conducting tort litigation as a means of asserting claims to Aboriginal title or rights.
The BCSC held that the key problem with the Plaintiffs’ intention to prove their Aboriginal rights and title during the course of the trial was that their claim was against a third party rather than the Crown.18 The BCSC noted that if this action were allowed to proceed to trial, it would be dominated by issues and evidentiary procedures that a private party like Alcan would not be in a position to respond to, and the Crown is the only party that can properly fulfil the role of adversary in such a complex legal process.19
B. Whether Aboriginal reserve interests are sufficient to claim nuisance or breach of riparian rights incidental to the reserve interests
Alcan submitted that the Plaintiffs’ alleged riparian rights to the waters of the Nechako by virtue of their reserve interests would have been extinguished by provincial statute prior to the creation of the reserves.20 Further, Alcan submitted that while the existence of the reserves may provide evidence of occupation, as potential evidence of Aboriginal rights and/or title, this was not relevant to the case at bar.21
The Plaintiffs argued that their reserve land interests were sufficient to ground a claim in private nuisance or breach of riparian rights regarding the waterways adjacent to their reserves.22
The BCSC noted that the extent to which an Aboriginal reserve interest is sufficient to ground claims in tort, such as private nuisance, is a novel claim and has yet to be determined by the courts.23
The BCSC noted that the nature of an Aboriginal interest in a reserve land is a right of use and occupation. However, the BCSC held that the current law of nuisance in British Columbia does not extend standing to individuals who merely occupy property without ownership or other interest in it. In considering the Plaintiffs’ right of "use" of the reserve land, the BCSC could find no basis in law upon which it would find this a sufficient interest in land to support a claim in nuisance.24
With respect to the Plaintiffs’ assertion that their reserve interests gave rise to riparian rights in water, the BCSC reviewed the development of riparian rights in the law. Historically, the common law concept of riparian rights had vested in private landowners property in and the right to the use and flow of water in a watercourse. However, the BCSC found that all riparian rights in respect of any stream were vested in the province of British Columbia by statute long before the reserves were created. The federal Crown could only attach rights to the reserve lands that it had been given by the province. And because it had not been given such rights, it could not confer them to the Plaintiffs’ bands.25 Accordingly, the BCSC held that the reserve interests of the Plaintiffs did not extend to riparian rights over the water and streams.26
The BCSC held that the Plaintiffs’ claim in private nuisance and breach of riparian rights based on an Aboriginal interest in reserve lands had no reasonable chance of succeeding.27
Summary of Decision
While declining to grant summary judgment in favour of Alcan, the BCSC granted Alcan’s application to strike the whole of the Plaintiffs’ pleadings because the Claim disclosed no reasonable cause of action. The BCSC held that a claim in private nuisance or for breach of riparian rights had no reasonable chance of succeeding when based on either unproven Aboriginal rights and title or the Plaintiffs’ Aboriginal reserve interests.
This decision highlights the challenges that Aboriginal groups are likely to face in seeking damages for impacts on asserted but unproven Aboriginal rights and title. While limited to an action in private nuisance, the reasoning of the BCSC appears to support the more general proposition advanced by Alcan that the establishment of Aboriginal rights is a necessary precondition to their enforcement – at least as against private third parties.28 In our view, this provides an important limitation on the types of claims that Aboriginal groups may advance against private third parties.
This decision also emphasizes both the proper forum in which to raise Aboriginal rights and title claims and the role of the Crown as the proper party against which to raise these claims, echoing a consistent theme from recent Supreme Court of Canada decisions:
Aboriginal rights litigation is of great importance to non-Aboriginal communities as well as to Aboriginal communities, and to the economic well being of both. The existence and scope of Aboriginal rights protected as they are under s. 35(1) […] must be determined after a full hearing that is fair to all the stakeholders.29
It is both the proper and the necessary role of the Crown to reconcile the interests of Aboriginal and non-Aboriginal Canadians. A private nuisance claim is not the appropriate forum in which to litigate the existence of an Aboriginal right.
1 2013 BCSC 2303 (Thomas).
2 Thomas at para. 53.
3 Thomas at paras. 62, 63.
4 Thomas at para. 45.
5 Thomas at paras. 66-69.
6 Thomas at para. 71.
7 Thomas at para. 74.
8 Thomas at paras. 75-89.
9 Thomas at para. 90.
10 Thomas at para. 147.
11 Thomas at para. 148.
12 Thomas at paras. 149, 150.
13 Thomas at para. 151.
14 Thomas at paras. 125 – 131.
15 Thomas at paras. 137, 156.
16 Thomas at paras. 138 – 146, 154.
17 Thomas at para. 160.
18 Thomas at paras. 154-164.
19 Thomas at para. 162.
20 Thomas at paras. 165-166.
21 Thomas at para. 166.
22 Thomas at paras. 167-168.
23 Thomas at para. 169.
24 Thomas at paras. 172 – 176.
25 Thomas at paras. 169-179.
26 Thomas at paras. 120 – 124, 177.
27 Thomas at para. 178.
28 The Supreme Court of Canada has previously indicated that compensation and damages may be an appropriate remedy in cases where the Crown did not consult, even where the subject matter of the consultation was a potential impact on an unproven Aboriginal right. See Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council 2010 SCC 43. See also our commentary on this aspect of the decision.
29 Lax Kw'alaams Indian Band v. Canada (A.G.). 2011 SCC 56 at para. 12.