BC First Nations’ nuisance action against industry dismissed, on the basis of unproven Aboriginal rights and title: Thomas v. Rio Tinto Alcan Inc.
The decision of the Supreme Court of British Columbia (the “BCSC”) in Thomas v. Rio Tinto Alcan Inc., 2013 BCSC 2303 (Thomas) has implications for Aboriginal groups seeking damages or injunctive relief against private third party operations. In the December 13, 2013 decision, the BCSC confirmed that asserted but unproven Aboriginal rights and title are not sufficient interests in British Columbia to base a claim in nuisance (a common law tort for damages against property); such rights must be recognized or proven. Thomas also reaffirms the longstanding principle that the Crown, rather than a private third party, is the appropriate adversary to respond to claims of Aboriginal rights and title. In addition, Thomas notes limits of the defence of statutory authorization, providing a cautionary lesson for industry actors whose operations, while permitted at law, may nevertheless result in adverse impacts to others.
Thomas arose from a civil action in nuisance commenced by two First Nations and their respective elected Chiefs seeking injunctive relief against the defendant, Rio Tinto Alcan. The First Nations assert Aboriginal rights and title along the Nechako River and claim proprietary interests in the lands, waters and resources of the Nechako, including its fisheries. In the action, the First Nations alleged that the Nechako’s waters and tributaries, and in turn their fisheries resources, were adversely impacted by the Kenney Dam operated by Alcan since 1952. The First Nations claimed that these impacts unreasonably interfered with their land and water rights. The First Nations sought to restrain Alcan from continuing its alleged nuisance and from operating the dam in a manner that would cause future nuisance.
Thomas addresses Alcan’s applications to the BCSC to dismiss the action on two grounds:
- Alcan applied for summary dismissal of the claim (without proceeding to trial) on the basis of its defence of statutory authorization. It argued that all of its activities affecting the Nechako waters were authorized by a water licence issued by the province of British Columbia.
- Alcan also applied for an order striking the First Nations’ pleadings, arguing that the First Nations’ asserted but unproven rights and title were not sufficient interests in the lands in question on which to base a claim in nuisance.
In respect of Alcan’s application for summary dismissal, while the BCSC agreed with Alcan that the dam operations were authorized by the water licence, it held that more evidence would be required for a court to consider whether the alleged impacts were the inevitable result of the authorized activities or if Alcan had practically feasible alternatives for operating the dam. Since it was not possible to determine whether Alcan’s defence would be successful without further evidence being adduced at trial, the BCSC declined to grant summary judgment on this basis.
Alcan was, however, successful in striking the pleadings of the First Nations. Alcan argued that the First Nations could not sue Alcan in nuisance, since the law does not recognize unproven interests in land as sufficient to found a claim in nuisance. The First Nations responded by pointing out that on an application to strike pleadings, the court must assume all the facts pleaded were true, and that they should be therefore granted an opportunity to prove their land rights at trial.
The BCSC agreed with Alcan, noting that private nuisance is a tort of substantial and unreasonable damage to or interference against land rather than against any person. The BCSC held that a plaintiff must have a proprietary interest (legal or equitable) in the affected land in order to have standing to commence an action alleging interference with that land. The BCSC noted that the law of nuisance in British Columbia does not recognize a plaintiff with an unproven interest in land, and that mere occupation or use of such lands is insufficient.
The BCSC held that the key problem with the First Nations’ intention to prove their Aboriginal title and rights during the course of the trial was that their claim was against Alcan, a private third party, rather than against the Crown, which was not a party to the litigation. The BCSC noted that if the action were allowed to proceed to trial, it would be dominated by issues and evidentiary procedures, to which Alcan would not be in a position to respond. The BCSC stressed that the Crown is the only party that can properly respond to asserted claims of Aboriginal title and rights.
The BCSC also rejected the First Nations’ position that their interests stemming from their reserve lands was a sufficient interest in the land to bring an action in nuisance or breach of riparian rights. The BCSC noted that the nature of an Aboriginal interest in a reserve land is a right of use and occupation. It held that the current law in British Columbia does not permit individuals who merely occupy or use land without ownership to bring a claim in nuisance.
The BCSC further noted that the First Nations could not claim riparian rights to the Neckako waters. Historically, the common law concept of riparian rights gave landowners a proprietary interest in and right to the water adjacent to their land. However, such rights had been expressly extinguished by the Province of British Columbia in a statute that vested all riparian rights in respect of any stream in the province of British Columbia. This occurred long before the First Nations’ reserves were created, therefore the federal Crown could not have conferred riparian rights to the First Nations when it created the reserves.
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 the decision is limited to an action in private nuisance, it appears to support the more general proposition advanced by Alcan that the establishment of Aboriginal rights is a necessary pre-condition to their enforcement – at least as against private third parties. In our view, this is provides an important limitation on the types of claims that Aboriginal groups without established land rights 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 whom to raise these claims. It is both the proper and necessary role of the Crown to reconcile the interests of Aboriginal and non-Aboriginal Canadians. As the Supreme Court of Canada has confirmed on numerous occasions, Aboriginal rights ligitation is critical to all Canadians, both Aboriginal and non-Aboriginal, and should only be determined after a full hearing that is fair to all stakeholders. A private nuisance claim is not the appropriate forum in which to litigate the existence of an Aboriginal right.
Special thanks to Jessica Dorsey for her assistance in preparing this article.
 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 at http://mccarthy.ca/article_detail.aspx?id=5178.
 Lax Kw'alaams Indian Band v. Canada (A.G.). 2011 SCC 56 at para. 12.
Aboriginal Alcan Carrier First Nations injunction injunctive Kenney Lax Neckako nuisance Rio Supreme Court of Canada Thomas