Saik’uz and Stellat’en case opens up new legal options for First Nations to sue industry

A First Nations’ lawsuit against a private company for harming Aboriginal rights can go to trial, says BC Court of Appeal in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc

The decision supports the right of First Nations to pursue “tort” claims, such as nuisance, against private parties (rather than suing the Crown) when a project harms Aboriginal rights. The ability of First Nations to pursue tort claims for environmental damage has been an important outstanding question in Canadian law. The Saik’uz and Stellat’en case against Rio Tinto Alcan sets an important precedent for Aboriginal groups and opens the door to holding industry accountable for historic and ongoing damage to their lands and resources due to industrial development. The case has broad-ranging implications for the enforcement of Aboriginal rights and could be a step towards a more fulsome consultation and accommodation regime.

Background

The plaintiff Saik’uz and Stellat’en First Nations (the “First Nations”) commenced a tort action against Rio Tinto Alcan Inc. (“Alcan”) for nuisance and breach of riparian rights resulting from the operation of the Kenney dam in Northwestern British Columbia. They sought interim and permanent injunctions to restrain Alcan from committing the nuisance and interfering with their riparian rights, with damages in the alternative.

Alcan brought applications for summary judgment based on the defence of statutory authority as well as to strike out the claim on the basis that it did not disclose a reasonable cause of action. Their main argument with regard to the latter was that before they could sue a third party, the y needed to prove the rights or have the Crown recognize them.

While the Court of Appeal had some interesting things to say about statutory authority and riparian rights, the most important and interesting aspects of this decision are the findings on the ability of First Nations to sue private entities for interfering with unproven aboriginal title or rights, and are the focus of this post.

Lower Decision

The chambers judge denied the application for summary judgment but granted the application to strike, holding, amongst other things that:

• Claims against third parties based on asserted but unproven aboriginal rights have no reasonable prospect of success;
• The Crown is a key party in any action asserting aboriginal title or rights; and
• Aboriginal people’s interest in reserve lands is not enough to ground a claim in private nuisance.

The First Nations appealed and Alcan cross-appealed the dismissal of its application for summary judgment.

Court of Appeal Decision

The Court of Appeal allowed the First Nations’ appeal in part. They held that the chambers judge was wrong that no reasonable cause of action existed until Aboriginal rights and title were proven or acknowledged by the Crown. Key findings of the Court of Appeal are discussed below.

The test for Aboriginal title, briefly stated, is exclusive occupation. The Court reviewed Canadian law on private nuisance and determined that it was at least arguable that the property interest that exists in Aboriginal title lands is enough to support an action in nuisance. Similarly, it was arguable that reserve lands are reserved for the exclusive use of the First Nation and may support an action in nuisance as well. In addition, the Court held that an Aboriginal right to harvest fish is similar to that of a profit a prendre, which could also be found to support a claim in private nuisance.

Public Nuisance

Public nuisance requires an activity that unreasonably interferes with the public’s interest in such things as health, safety, morality, comfort or convenience, with an added requirement that the plaintiff to prove special damage. The Court held that unreasonable interference with the public’s interest in harvesting fish from the Nechako River system is a type of interference protected by the tort of public nuisance and interference with an Aboriginal right to fish may be sufficient to satisfy the special damage requirement.

Riparian Rights

There were arguable questions as to whether riparian rights existed based on Aboriginal title and whether the Province could extinguish them through legislation. However, this was not the case with respect to the First Nations’ interests in reserve lands.

Claims Based on Asserted Aboriginal Rights/Title

The Court held that the effect of the chambers judge’s ruling was to “create a unique pre-requisite to the enforcement of Aboriginal title and other Aboriginal rights.” The Court seemed to be worried that this created a two-step process to litigation that only applied to Aboriginal peoples: 1. Sue to prove the rights or have the Crown otherwise acknowledge them, and 2. Potentially sue the third party that is interfering with them.

Pointing to section 35 of the Constitution and case law form the Supreme Court of Canada, the Court made it clear that aboriginal rights exist prior to a court declaration and “all that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.” They also pointed out that the Crown holds the duty to consult and accommodate pending proof of aboriginal rights. However, you can still hold third parties liable for infringement of Aboriginal rights.

Interestingly, the Court cited a recent Quebec case as an example of a court that had declined to follow the Chambers judge’s decision. However, in that case, the action against the private entity was permitted to continue because the Crown had been added as a party. The chambers judge was of the opinion that any action involving claims for aboriginal rights and title would necessarily involve the Crown.

The Court of Appeal glossed over this issue, stating, “Whether the Crown is party to the action should not be determinative of the issue whether the pleadings disclose a reasonable cause of action.” It will be interesting to see whether Rio Tinto seeks to have Crown parties added as affected parties in the future.

Implications

While it is true that “private entities could be held liable for impacts to as-yet-unproven Aboriginal title or rights, potentially providing significant leverage for Aboriginal groups while also creating a good deal of legal uncertainty for private entities,” it is important to note that this is not a definitive pronouncement one way or the other. The decision simply allows the case to proceed to trial, where the issues will actually be decided.

The Court of Appeal also did not explicitly state that the Crown is not an affected party to any action requiring the proof of aboriginal rights/title, but simply that the failure to add the Crown was not a factor to be considered in deciding whether the facts disclosed a reasonable cause of action. It is still open to Alcan to add the Crown as a party as was the case in the Quebec Innu decision. Private entities may seize on that decision and the chambers judge’s reasons as support for the proposition that the Crown should and must be added to these types of actions.

On the other hand, this case is strong support for the developing notion that private entities can no longer use the Crown’s duty to consult and accommodate as a shield for their ongoing interferences with aboriginal rights. Often in practice, the process of consultation delegated to private entities. Rather than developing these processes with affected First Nations, too often, they are dictated. Failure to participate in these often-flawed processes is then used against non-participating First Nations as evidence of their “lack of interest”. Perhaps, faced with the added incentive of being personally liable for their interference, third parties will have more incentive to engage First Nations and seek their full and informed consent to activities that affect their rights.

On a broader level, this case is another step in the direction towards a more fulsome and equitable view of the nature of Aboriginal people’s interests in their homelands. A fundamental premise of Canadian Aboriginal law is the interposition of the Crown between Aboriginal people and other Canadians. It inserts the Crown as the “protector” of Aboriginal interests, in the paternalistic view that they lack the capacity to protect themselves. Recognizing that aboriginal rights/title exist as against the world and allowing for Aboriginal peoples to use the court system to enforce those rights recognizes this simple proposition. As the Court of Appeal stated, “Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant.” True reconciliation can only be achieved if both sides come to the table from an equal position. This case is a step forward in that direction.

By Jeremiah Raining Bird