On April 15, 2015, the British Columbia Court of Appeal released its decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154.  The Saik’uz and Stellat’en First Nations (the “Nechako Nations”) had appealed a decision from the BC Supreme Court in which the chambers judge held that no reasonable causes of action existed against Rio Tinto Alcan Inc. until Aboriginal rights and title were proven or acknowledged by the Crown.  The Court of Appeal overturned the decision and held that the BC Supreme Court had erred in deciding that the Nechako Nations could only bring a claim in tort once their Aboriginal title and rights were proven in court or acknowledged by the Crown. The decision is significant as the court recognized that Aboriginal title and rights exist independent of any recognition by the Crown and it now may be possible for First Nations groups to bring tort claims founded on Aboriginal title and rights, prior to those rights being formally recognized by a court declaration or government agreement.

Background

The Nechako Nations commenced an action against Rio Tinto Alcan Inc. (“Alcan”) alleging nuisance and breach of riparian rights as a result of the operation of the Kenney Dam. They sought relief in the form of interlocutory and permanent injunctions to restrain Rio Tinto from committing the nuisance and interfering with their riparian rights. The Nechako Nations claimed that the operation of the Kenney Dam was damaging the ecosystem of the Nechako River and had negatively affected the fisheries resources of the Nechako River system. The underlying basis for the Nechako First Nations' claims was their asserted, but not yet proven, Aboriginal rights, including Aboriginal title, and rights arising from their interest in their Indian Reserves which border the Nechako River.

Alcan brought an application seeking: (i) an order striking out the notice of the civil claim on the basis that until rights are proven or acknowledged, they could not form the basis for a claim against a private party; and (ii) summary judgment dismissing the claims on the basis that the defence of statutory authority was a full defence to the claims.

The chambers judge dismissed Alcan’s application for summary judgement; but granted Alcan's application to strike out the whole of the notice of claim. In the result, the action was dismissed. The chambers judge held that no reasonable cause of action existed until Aboriginal rights and title were proven or acknowledged by the Crown. The Nechako Nations appeal the order striking out their notice of civil claim.  Alcan cross appealed the dismissal of its application for summary judgment.

Decision

The central question in the appeal was whether tort claims related to impacts to Aboriginal title and rights may be advanced prior to those rights being established by court declaration or recognized within a government agreement.

(a)          Appeal of Decision to Strike Notice of Civil Claim

On appeal, the Court of Appeal considered the test to strike pleadings from R. v. Imperial Tobacco Canada Ltd., which is whether it is “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action.” The Court of Appeal held that the chambers judge erred in holding that no reasonable causes of action existed until Aboriginal rights and title were proven or acknowledged by the Crown. It was not plain and obvious that Nechako’s civil claim disclosed no reasonable cause of action in respect of the claims of private nuisance, public nuisance and interference with riparian rights to the extent they are based on Aboriginal rights and title.

The Court of Appeal found that the BC Supreme Court had incorrectly created a “unique pre-requisite to the enforcement of Aboriginal title and other Aboriginal rights” whereby these rights could only be relied on or enforced if they had first been proven in court or recognized by the Crown. Imposing such a pre-requisite would be inconsistent with s. 35 of theConstitution Act, which recognizes and affirms “existing” Aboriginal title and rights. In other words, the law is clear that Aboriginal title and rights exist prior to declaration or recognition.

Despite Alcan’s claims that it was unprecedented to allow “unrecognized” Aboriginal rights to ground common law claims in tort, the Court of Appeal stated that there was no principled reason to require the Nechako Nations to first obtain a court declaration in an action against the Province regarding the existence of their rights, before starting an action against a third party, such as Alcan.

(b)         Appeal of Decision Denying Summary Judgment on the Basis of Statutory Defence

The Court of Appeal agreed with the BC Supreme Court’s dismissal of Alcan’s application for summary judgment based on its defence of statutory authorization. The Court of Appeal held there was a genuine issue for trial, as the statutory authority relied upon by Alcan did not prescribe how the Kenney Dam was to be constructed. Evidence at trial will be needed to determine whether it could have been constructed in a manner that avoided the alleged nuisance. The Court of Appeal held that “the statutory authority did not prescribe how the Kenney Dam was to be constructed, and it is not known whether it could have been constructed in a manner that could have avoided the alleged nuisance.” As such, the Court of Appeal decided that a full trial was necessary.

Implications

Claims by First Nations against private parties for breach of aboriginal rights and title are unusual. Normally such claims are made against the provincial or federal government, or both. This decision is significant as the court recognized that Aboriginal title and rights exist independent of any recognition by the Crown and it now may be possible for First Nations to bring tort claims founded on Aboriginal title and rights, prior to those rights being formally recognized by a court declaration or government agreement. Private third parties could now face litigation where First Nations’ groups claim Aboriginal title or rights.

This case adds to a growing, but still unsettled, body of case law dealing with industry’s liability to First Nations for interference with Aboriginal rights and the question of how extensively industry can rely on Crown authorizations to insulate itself from liability.  In the 2000 case of Chippewas of Sarnia Band v. Canada, the court found that in the 1800s, the Crown had invalidly granted private parties fee simple interests in lands that had been set aside for the Chippewas.  As bona fidepurchasers for value, the private parties were not responsible for compensating the First Nation; liability resided solely with the Crown.  Proponents currently seeking, or relying on Crown tenures for their commercial enterprises, should not assume the bona fide purchaser for value rule would protect them in similar fashion: they could not claim they did not have notice of First Nations’ interests even if those interests were yet unproven Aboriginal rights or title. 

In the 2015 case of Moulton Contracting Ltd. v. British Columbia, the BC Court of Appeal found that the Crown was not liable to Moulton for $1.5 million in damages stemming from a blockade erected by members of the affected First Nation:  the language of the issued permit protected the Crown from liability to Moulton if consultation was inadequate.  It is likely that when the parties involved in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc. go to trial those issues, and others issues, will be considered.