On April 15, 2015, the B.C. Court of Appeal rendered its decision in Saik'uz First Nation and Stellat'en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, which accepts that there is a possibility that First Nations have the ability to pursue claims of impacts to Aboriginal rights and title against non-governmental parties (project proponents) prior to proving those rights or title.
Rio Tinto Alcan Inc. (“Alcan”) brought an application to strike the Saik’uz First Nation and Stellat’en First Nation (the “Nechako Nations”) Notice of Civil Claim and for summary judgment on the basis of a defence of “statutory authority”. On appeal, the British Columbia Court of Appeal unanimously held that it was not plain and obvious that the Nechako Nations’ Notice of Civil Claim discloses no reasonable causes of action until the Aboriginal rights and title were proven or acknowledged by the Crown and dismissed Alcan’s cross-appeal seeking summary judgment.
The Nechako Nations commenced an action against Alcan in September 2011, claiming private and public nuisance and breach of riparian rights, as a result of Alcan’s operation of the Kenney Dam on the Nechako River, which was built in the early 1950s to provide water for power generation to be used in Alcan’s aluminum smelter in Kitimat. The Kenney Dam is regulated by agreements with Province of British Columbia and a water license. The Notice of Civil Claim sought interlocutory and permanent injunctions to restrain Alcan from committing nuisance and interfering with their riparian rights, as well as damages in the alternative (if one of Alcan’s defences prevailed and there could be no injunction).
They base their claims in Aboriginal rights and title, claiming that they used and exclusively occupied specific sites along the Nechako River for fishing purposes and claim proprietary rights to those fisheries. They also base their claims their ownership and occupation of their reserves under the Indian Act.
The Nechako Nations allege that the diversion of water at the Kenney Dam has significant adverse effects on the Nechako River which have negatively affected the fisheries resources of the Nechako River.
At first instance, the chambers judge granted Alcan's application to strike the Notice of Civil Claim and the action was dismissed. The chambers judge dismissed Alcan's application for summary judgment, which had been on the basis that the defence of “statutory authority” was a full answer to the claim.
The main issue on appeal was the Nechako Nations’ appeal of the chambers judge’s order striking their Notice of Civil Claim. Alcan also cross-appealed the chambers judge’s dismissal of its summary judgement application.
The Court of Appeal strictly applied the test for striking a claim if it discloses no reasonable claim: it must be “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”.
Because the test requires that the facts pleaded be assumed to be true, the Court of Appeal held that it was not plain and obvious that the claims of private and public nuisance and breach of riparian rights, based on the Nechako Nations’ pled claims of Aboriginal rights and title discloses no reasonable cause of action.
The Court of Appeal also considered the Nechako Nations’ claims based on exclusive possession of reserve lands. The Court of Appeal struck the claim for interference with riparian rights because B.C. had extinguished common law riparian rights prior to the Nechako Nations’ reserves being created. However, the Court of Appeal did not strike the claim for private nuisance based on exclusive possession of the Nechako Nations’ reserve lands.
The Court of Appeal did not consider the Notice of Civil Claim to be a collateral attack on the validity of Alcan’s water license and related regulatory instruments (as was argued by Alcan). Instead, the Court considered the Nechako Nations to be taking the position that these instruments and legislation are constitutionally inapplicable to remove or diminish their Aboriginal or proprietary rights.
The Court of Appeal further dismissed Alcan’s cross-appeal of the chambers judge’s dismissal of its application for summary judgment, as it considered the issue of whether the defence of statutory authority is applicable to be fact dependant requiring a trial.
This decision provides First Nations with the possibility of pursuing claims of impacts to Aboriginal Title as against non-governmental parties prior to actually proving title. However, as part of such a claim, the First Nations would have to prove title, a process that can take over a decade.
The Court of Appeal acknowledges that those who are not a party to the proceedings would not be bound by the result, which would provide incentive for First Nations to name the Crown as a party in such claims. Additionally, because the Crown is the proper party to address claims of Aboriginal title, any non-governmental party subject to such a suit would have incentive to add the Crown to deal with the Aboriginal title and rights aspects of the claim.
Further, it is interesting to note that the main relief sought (both injunctions and damages) are sought prospectively (i.e. after title is proven), rather than prior to proof of title, which accords with the Tsilhqot’in decision that states that prior to title being proven, the only governmental requirement is consultation pursuant to the Haida test. The Nechako Nations have also claimed for an interlocutory injunction (an injunction that would last until a hearing of the trial), and it will be interesting to see if that is pursued in light of the Tsilhqot’in decision.