The court found that Rio Tinto had ‘significantly impaired’ the Saik’uz and Stellat’en First Nations’ historical fishing rights
By Julius Melnitzer | January 26, 2022
The British Columbia Supreme Court has opened up yet another avenue for First Nations seeking redress against project developers for infringement of their Aboriginal rights and title.
“While litigation has historically focused on the relationship between the Crown and Indigenous people, this decision opens the door for greater litigation between Indigenous peoples and proponents,” said Arend Hoekstra, an aboriginal law practitioner in Cassels Brock & Blackwell LLP’s Vancouver office.
In a landmark decision early this month, and after a 189-day trial, the court ruled that Saik’uz and Stellat’en First Nations could use the tort of nuisance to sue mining giant Rio Tinto Alcan Inc. for impairment to their fishing rights resulting from the construction and operation of the 70-year-old Kenney Dam in the Nechako watershed in British Columbia.
Enforcement of Aboriginal rights has to date been grounded in constitutional law, treaty law and, in the case of impact benefit agreements, contract law. But the decision in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc. marks the first time that Canadian law has recognized First Nations’ right to rely on a tort — a wrongful act or infringement of a right other than under a contract — to ground liability against a private developer.
The court rejected outright Rio Tinto’s assertion that claims based on Aboriginal rights or title could only be asserted against the Crown and not against a private entity.
“It’s a big step in the jurisprudence and it has the potential to open up a broad range of remedies,” said Maegen Giltrow, lead partner for Vancouver-based Ratcliff LLP’s Indigenous law group and lead counsel for the plaintiffs in the Thomas case.
However, it’s not as if the court declared open season on Aboriginal rights claims based in tort. The right to access tort remedies, the court added, came with the usual limitations on tort claims. These included proponents’ right to rely on valid government authorizations as a defence to the claims. Proponents could also rely on limitation periods that were normally applicable to tort claims — a restriction that does not apply to actions based on constitutional or treaty law principles.
“Because limitation periods apply, the impact of the Thomas decision would be mainly on ongoing or recently discovered activities,” Hoekstra said.
In this case, the court found that Rio Tinto had “significantly impaired” the Saik’uz and Stellat’en First Nations’ historical fishing rights because the Kenney Dam diverted the Nechako River in a way that depleted the fish stocks.
However, Rio Tinto had built the dam based on approvals from the federal and provincial government. The company had also always “strictly complied” with agreements concerning the river’s flow. The upshot was that the “statutory authority” defence immunized Rio Tinto from liability against the tort claims.
“If RTA had in some way exceeded the authorizations, then the plaintiffs’ claim in nuisance could have succeeded,” the court wrote.
The court dismissed the plaintiff’s arguments that, notwithstanding the authorizations, RTA should be held liable because it could have operated and constructed the dam in ways that lessened the harm to the fish stocks.
“In other words, the court ruled that proponents can make maximum use of the permissions expressly granted or implied by governmental authorizations,” Giltrow said.
And while the court did affirm the Crown’s duty to protect the Aboriginal right to fish, the plaintiffs here had chosen not to sue the governments involved and so could not recover against them.
Although Hoekstra maintains that proponents should anticipate more litigation based on this ruling, he believes its greatest impact will appear in negotiations.
“The Supreme Court of Canada has repeatedly cited a preference for negotiation over litigation by way of advancing reconciliation, so I would expect increased requests for negotiations based on tort claims,” he said.
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Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at email@example.com or https://legalwriter.net/contact.