In a fascinating and potentially revolutionary decision, the British Columbia Court of Appeal has held that Aboriginal groups can rely on Aboriginal rights and title when suing private parties in tort – even if those rights and title have not been proven in previous litigation with the Crown, or previously accepted by the Crown. Basically, the Crown doesn't even have to be invited to the party. The case, Saik'uz First Nation and Stellat'en First Nation v Rio Tinto Alcan Inc, 2015 BCCA 154, has the potential to change the face of, and even increase, litigation by Aboriginal groups against industry proponents across Canada, but it also raises more questions than it answers about how this litigation will look.
Saik'uz First Nation has been summarized elsewhere, by:
- DLA Piper: http://canliiconnects.org/en/commentaries/37129
- Borden Ladner Gervais: http://canliiconnects.org/en/commentaries/37102
- Lawson Lundell: http://canliiconnects.org/en/commentaries/36810
To briefly review the facts, the Saik'uz and Stellat'en First Nations (referred to as the "Nechako Nations") sued Alcan for private nuisance; public nuisance; and breach of riparian (water-related) rights. These claims arose from Alcan's operation of the Kenney Dam in BC, which Alcan has used for decades to provide water to help generate power for its aluminum smelting facility. The Nechako Nations requested injunctive relief against Alcan or, in the alternative, damages. (See paras 1-4.)
The Nechako Nations claim Aboriginal title to the land around and bed of the Nechako River, where the Dam is located, based on exclusive occupation at the time of sovereignty, and they claim particular "proprietary interests in the waters and resources" (paras 22; 54). They also claim several other Aboriginal rights related to fishing and fisheries in and around the River. According to the Nechako Nations, "the diversion of water by Alcan at the Kenney Dam has significant adverse impacts on the Nechako River" and therefore their ability to exercise their rights (para 24).
This post focuses on Alcan's motion to strike the Nechako Nations' tort claims as being based on unproven Aboriginal rights, including Aboriginal title.1 The Chambers Judge had granted Alcan's motion to strike, concluding "that the Crown is a key party and is the only party who can properly fulfill the role of adversary" (see para 32). (The provincial and federal Crowns had each received a notice of constitutional question in this case, but did not respond: para 26.)
The Court of Appeal overturned the Chambers decision in part.2
Why is this case a big deal?
At the outset, it is important to remember the test on a motion to strike: "A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action" (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 17, cited in Saik'uz First Nation at para 34). The "novel" nature of a claim won't be enough to stop it from going forward (Saik'uz First Nation at para 35).
So that's where we are after this decision: The Nechako Nations' tort claims against Alcan can go to trial. They have not yet been proven on a balance of probabilities.
Nevertheless, it's the particular causes of action at issue here that make this case so newsworthy – especially private nuisance and breach of riparian rights.3
Both private nuisance and breach of riparian rights require the plaintiff to prove some sort of interference with an underlying property interest. The plaintiff's property interest does not necessarily have to rise to the level of ownership in fee simple (see e.g. para 38), but the connection between tort and property is there.
What's not there, at least in this case, is the Crown.4 As will be discussed more below, this is a major development, because the Supreme Court jurisprudence on Aboriginal rights and title has always involved the Crown on the other side. The test for Aboriginal title itself is inextricably linked to the Crown and the goal of reconciliation: Tsilhqot'in Nation v British Columbia, 2014 SCC 44.
Interestingly, Justice Tysoe cited paragraph 56 of the Supreme Court's decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 to support his conclusion "that while third parties cannot be held liable for failing to discharge the Crown's duty to consult and accommodate, that does not mean they can never be held liable of infringement of Aboriginal rights" (para 77; emphasis added). But the causes of action mentioned in that paragraph of Haida had nothing to do with property-related rights:
 The fact that third parties are under no duty to consult or accommodate Aboriginal concerns does not mean that they can never be liable to Aboriginal peoples. If they act negligently in circumstances where they owe Aboriginal peoples a duty of care, or if they breach contracts with Aboriginal peoples or deal with them dishonestly, they may be held legally liable. But they cannot be held liable for failing to discharge the Crown's duty to consult and accommodate. [emphasis added]
It was probably not an accident that negligence and breach of contract were the causes of action envisioned against private parties; they would not usually require proof of an underlying property interest. Saik'uz First Nation would not be as big a deal if it was about those kinds of private claims.
Property rights are different. Or at least they were, until this case.
According to the BCCA, even where as-yet-unproven Aboriginal rights and title are at stake, the Crown's participation is not a necessary condition of successful litigation. As Justice Tysoe put it: "Whether the Crown is a party to the action should not be determinative of the issue whether the pleadings disclose a reasonable cause of action" (para 70; see also para 78).
On the particular claim of private nuisance, the Court concluded:
 The Nechako Nations plead that they exclusively occupied portions of the Central Carrier territory, including the Nechako River and lands along its banks, at the time of British sovereignty. If this alleged fact is true, the Nechako Nations would have Aboriginal title to those lands. Although this is not ownership in fee simple, Aboriginal title would give the Nechako Nations the right to possess the lands. It is therefore not plain and obvious that the Nechako Nations do not have sufficient occupancy to found an action in private nuisance.
And on breach of riparian rights: "Although Aboriginal title is not the same as title in fee simple at common law, it is arguable that a similar kind of riparian rights associated with ownership in fee simple attach to Aboriginal title to lands adjacent to water" (para 59).
The Court therefore accepted that these property-based claims could be proven at trial, even without the Crown's presence, and even though they had not been formally "recognized":
 The effect of the ruling by the chambers judge is to create a unique pre-requisite to the enforcement of Aboriginal title and other Aboriginal rights. Under this approach, these rights could only be enforced by an action if, prior to the commencement of the action, they have been declared by a court of competent jurisdiction or are accepted by the Crown. In my view, that would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are so declared or recognized. However, the law is clear that they do exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.
 The proposition that Aboriginal rights exist prior to a court declaration or Crown acceptance is embodied in s. 35(1) of the Constitution Act, 1982 (being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11):
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
The use of the words "recognized and affirmed" indicates that the Crown has already accepted the existing Aboriginal rights, and it is really just a matter of identifying what they are.
Leaving aside the issue of whether the Crown has actually "accepted the existing Aboriginal rights," proving these rights in a particular case will always require sufficient evidence. The Supreme Court has been clear on this point (see e.g. Tsilhqot'in). And of course, surviving a motion to strike—where "no evidence is admissible"—does not obviate the need to provide sufficient evidence to prove a claim at trial (para 34).
But at least at the motion to strike stage, the Court of Appeal could see no reason to distinguish Aboriginal litigants from other tort claimants:
 As whatever Aboriginal rights the Nechako Nations may have are already in existence, it seems to me there is no reason in principle to require them to first obtain a court declaration in an action against the Province before they can maintain an action against another party seeking relief in reliance on their Aboriginal rights. As any other litigant, they should be permitted to prove in the action against another party the rights that are required to be proved in order to succeed in the claim against the other party.
 Aboriginal people are part of Canada's community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights. Setting a separate standard for Aboriginal people before they can sue other parties in order to enforce their rights is not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms. [emphasis added]
The Court's logic is attractive. But it is worth emphasizing that the decision was about whether the claims should be struck, not whether the Nechako Nations will actually be able to prove their case at trial. The limited scope of the ruling means the practical implications are yet to be determined.
Here are a few outstanding questions that Saik'uz First Nation raises:
- Presumably, the same standards of proof will exist even where the Crown is not involved, e.g. to prove Aboriginal title (para 50). But the test for title looks back to the date of Crown sovereignty. The Aboriginal group will have to produce historical evidence to back up its claim, at least if it is based on title. If the Crown is not involved, it may be onerous, time-consuming, and expensive for proponents to provide competing historical evidence, if they choose to do so – thus increasing the complexity and length of tort lawsuits (see e.g. Haida at para 14).
- Just because the Crown did not get involved in this case doesn't mean it won't want to be involved in future cases where Aboriginal property interests are at stake – or that a defendant will not seek to add the Crown as a third party. Procedural wrangling seems inevitable.
- What will be the role of res judicata doctrines? If an Aboriginal group proves a property interest in tort litigation, will that constitute conclusive proof in negotiations or future litigation involving the Crown (e.g. for a declaration of title)? The BCCA was clear that the Crown does not have to "recognize" that property interest before the group can sue a private party, but what about after?
- What kinds of justification-type defences, if any, will be available to third parties defending tort claims? The Court in Tsilhqot'in explained the limited circumstances in which the Crown can justify interferences with Aboriginal title (which are based in part on the Crown's fiduciary duty). Will there be unique defences in the tort context?
- Will the decision encourage challenges to previous project authorizations and renewals? (The Nechako Nations in this action alleged that Alcan's water licence could not apply to limit their rights.)
- What will be the impact, if any, of this decision on a third party proponent's duty to consult and accommodate Aboriginal groups? The Supreme Court has consistently reiterated that the ultimate duty rests with the Crown, as it based on the honour of the Crown. We know that the Crown can delegate "procedural aspects" of its duty but we don't know much about what this means in practice. Many proponents are well-versed participants in consultation and accommodation (e.g. as part of provincial consultation protocols) but the boundaries of their enforceable legal obligations to Aboriginal groups in this respect are not entirely clear.
It is unclear at this point whether Alcan will seek leave to appeal to the Supreme Court of Canada. If this case does go to the SCC, expect interventions from Aboriginal groups, Attorneys General, and industry participants. In the meantime, private litigation involving Aboriginal rights claims might become a bit more complicated.
1 Alcan also moved for summary judgment, arguing that it had a full defence of statutory authority (para 5), and asking that the Nechako Nations' allegations that the statutory authority defence was constitutionally inapplicable be struck as a collateral attack on Alcan's water licence and / or as an abuse of process (paras 106). The Court of Appeal upheld the Chambers Judge's decision to deny summary judgment (para 105) and refused to strike the impugned paragraphs (paras 114-116).
2 The Court of Appeal agreed with Alcan, and the Chambers Judge, that "there was no reasonable prospect of success" to the riparian rights claim based on the Nechako Nations' reserve rights (para 85).
3 Public nuisance, the third tort pleaded, is a bit different, as the Court described at paras 41-42, citing Ryan v Victoria (City),  1 SCR 201. In Ryan at paras 51-52, Justice Major stated: "An individual may bring a private action in public nuisance by pleading and proving special damage. ... Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. ... Whether or not a particular activity constitutes a public nuisance is a question of fact." The Court in Saik'uz First Nation held at para 57 that "unreasonable interference with the public's interest in harvesting fish" could ground the tort and, for the Nechako Nations, interference with their fishing rights could constitute special damage, so this claim could proceed as well.
4 The Court did consider a couple of cases raising Aboriginal rights issues where the Crown was not involved: See paras 71-75.
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