Intersection of Aboriginal rights law and private tort law: A new development?

Thomas v Rio Tinto Alcan Inc.

The Thomas v Rio Tinto Alcan Inc. line of cases was initiated by the Saik’uz and Stellat’en First Nations, located west of Prince George (the “First Nations”) as a claim for damages against a private defendant for alleged harm to proprietary interests based on a claim of asserted, but unproven, Aboriginal rights and title. This case presented the opportunity for a new development in aboriginal law.

In 2011, the First Nations commenced an action in tort against Rio Tinto Alcan (“Alcan”) for nuisance caused by the Kenney Dam to the Nechako River system and to their adjacent reserves and to lands to which they assert aboriginal title. In July 2016, the defendant, Alcan, applied to have both the federal and provincial Crown added as defendants in the litigation. The First Nations opposed the addition of the Crown because they were not seeking a formal declaration of Aboriginal title; they were purely bringing an action in tort (nuisance and wrongful interference with riparian rights) against Alcan. Nonetheless, the Crown, both federal and provincial, were added as defendants in 2016, by court order.

The First Nations concurrently added to their claim allegations of duties and defaults on the part of the Crown defendants.  This included that the Crown failed to act on their fiduciary duty and other obligations to the First Nations with respect to sufficiently controlling the water flows from the dam so as to preserve the fish and fishery in the Nechako River system.

Alcan and the Crown opposed some of the First Nations’ amendments to their claim for various reasons, including the fact that they believed them to be vague and thus difficult, if not impossible, to enforce,

On application before the Supreme Court of British Columbia (the “Supreme Court”), the First Nations were successful to the extent that they were allowed to amend their claim, with costs awarded to the First Nations to be assessed at the conclusion of the action.

However, the court in obiter noted a number of problems the First Nations would need to overcome at trial in order to be successful in their claim. In the reasons issued by the Supreme Court in January 2019, the court found that it is not clear at this stage that the relief sought by the First Nations is bound to fail. Ultimately, all is left to be determined at trial.

The Evolution of the Case:

In September 2011, the First Nations commenced an action against Alcan for nuisance caused to their proprietary interests and riparian rights. In addition, the First Nations asserted that their aboriginal rights to a fishery were impacted as a result of the diversion and alteration of the water flowing to the Nechako River.

On December 13, 2013, in the Thomas v Rio Tinto Alcan Inc., 2013 BCSC 2303 decision, Mr. Justice Cohen, in his reasons for judgment, struck the First Nations’ Notice of Civil Claim as he determined that no claim for proprietary damages could be brought by First Nations until the First Nations’ claims of Aboriginal rights and title are first proven. The Supreme Court ruling was overturned in large part by the Court of Appeal on April 15, 2015, in its decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154. The Court of Appeal determined that the First Nations had properly brought their action against Alcan, as their claims to aboriginal title and rights, if established, would result in sufficient occupancy to found an action in private nuisance.

The test for determining whether a reasonable cause of action has been made out is to determine, assuming the facts alleged in the notice of civil claim are true, whether a reasonable cause of action in tort has been made out. The Court of Appeal held that the First Nations, like any other litigant, should be afforded the opportunity to prove the rights required in order to succeed in their claim against the other party. Case law from Delgamukw to Tsihlqo’tin confirms that aboriginal title exists and defines the nature of aboriginal rights and title. Section 35(1) of the Constitution Act confirms recognition of “existing aboriginal and treaty rights of the Aboriginal peoples of Canada”.

The First Nations’ private nuisance claim, based on their right to exclusive possession of their reserve lands, was well founded.  However, the Court of Appeal upheld the Supreme Court’s finding that, on the facts of the case, the First Nations’ reserve interests do not include riparian rights. Water rights were vested in the Province of British Columbia in 1925, years before the reserves were created in 1938. Nonetheless, the First Nations’ claim to wrongful interference with riparian rights, tied to potential aboriginal title lands, was founded.

Application to Add Crown as Defendants

In July 2016, Alcan applied to have both the federal and provincial Crown added as defendants in the action. The First Nations opposed the addition of the Crown because they were not seeking a formal declaration of aboriginal title; they were purely bringing an action in tort. Nonetheless, Mr. Justice Kent in his reasons for judgment in Thomas v Rio Tinto Alcan Inc., 2016 BCSC 1474, concluded that it was appropriate for the federal and provincial Crown to be added as defendants in the Claim for the following reasons:

• this is a major and complex case in which the intersection between aboriginal rights and common law tort stand to be defined
• the First Nations had already formally invited the Crown to participate through issuance of a Notice of Constitutional Question, challenging various laws and legal agreement issued or made by the Crown as inapplicable based upon alleged aboriginal title and rights held by the First Nations; pursuant to s. 8 of the Constitutional Question Act, both crowns have the right to become a party and contest the existence and extent of the title and rights forming the basis of the constitutional challenge
• pursuant to the Water Act, the Province owns the water that forms the subject matter of the dispute, subject to the aboriginal rights and title the First Nations may have, and therefore, is entitled to participate in litigation involving its property
• the First Nations allege, and will be required to establish, that they have aboriginal rights and title to the lands and waters affected by the operation of the Kenney Dam
• though the Court of Appeal had confirmed the action in which aboriginal rights and title were claimed could proceed despite the fact that the Crown was not yet a party to the litigation, it is still an important factor that litigation involving claims of Aboriginal rights and title is of general public importance, and a private litigant may not adequately represent all of the public interests at stake
• a finding regarding aboriginal rights and title of the First Nations involves evidence of exclusive occupation on the date of British sovereignty over British Columbia and culturally distinctive practices carried out prior to European contact, matters of which Rio Tinto says they have no knowledge; only the Crown would be able to meaningfully respond to the First Nations’ claims
• despite the fact that adding the crown as defendants will add complexity, time and expense to the proceedings, an assertion of aboriginal title and rights as the basis for common law rights leads almost inevitably to the need to add the Crown as defendants

As such, the First Nations were ordered to amend their claim, adding the Crown, federal and provincial, as defendants.

Amended Notice of Civil Claim

The First Nations filed their Amended Notice of Civil Claim in October 2016. It included allegations of duties and defaults on the part of the Crown defendants, including that the Crown failed to act on their fiduciary duty and other obligations to the First Nations to sufficiently control the water flows from the dam so as to preserve the fish and fishery in the Nechako River system.

Alcan and the Crown opposed certain amendments and sought declaratory relief because they believed the allegations to be vague and thus difficult, if not impossible, to enforce.

In reasons issued January 2019, the Supreme Court pointed out a number of obstacles it sees the First Nations having to overcome in order to establish that the relief they seek is appropriate. However, given that a full trial will be held to determine whether the relief proposed by the First Nations is available as a matter of law, it is not clear at this stage that the relief sought by the First Nations is bound to fail. Ultimately, the court left all to be decided at trial.

What We’ve Learned 

It is well settled that an action for tort can be brought by a First Nation against a private defendant for harm done against proven or recognized Aboriginal rights and title lands. This case confirms that an action in tort can be brought by First Nations against a private defendant for damages for harm against asserted, but not proven, Aboriginal rights and title to lands. Where Aboriginal rights and title have not been proven, it may be possible to bring an action without adding the Crown as a party; however, adding the Crown as a defendant will ensure that all issues are dealt with in one action.

Conclusion

This case presented an opportunity for a new and unique development in the law in two ways. Firstly, it was an action for damages brought by First Nations solely against a private defendant for alleged harm to proprietary interests based on a claim of asserted aboriginal rights and title. Secondly, the issue of how Aboriginal rights and title, which are claims against the Crown, would be proven in such an action, if the Crown were not a party, remained an open question that was ultimately resolved in this case through applications to the courts.

We expect to see developments in the laws that further define the intersection of Aboriginal rights law and private tort law in future.

Anita Boscariol is a lawyer in the Indigenous Law Group and advises a variety of clients with matters related to issues of Indigenous self-government, economic development, governance, and engagement, consultation and accommodation.