On February 26, 2024, the Court of Appeal for British Columbia (the "Court") issued its decision in Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62. The underlying trial dealt with claims of nuisance brought by the Saik'uz First Nation and the Stellat'en First Nation (collectively, the "Nechako Nations") against Rio Tinto Alcan Inc. ("RTA") as a result of its operation of the Kenney Dam, a government authorized project, on the Nechako River. A central issue considered by the Court on appeal was whether the defence of statutory authority was available to RTA to avoid liability. The Court concluded that the defence applied in this instance.

Despite upholding the bulk of the trial decision, the Court varied the trial judge's declaration to give it more practical utility and clarity. This variation clarifies the federal and provincial governments' fiduciary duty to protect the Nechako Nations' established Aboriginal fishing right. Specifically, it emphasizes the governments' roles in managing the annual water allocation and flow regime for the Nechako River, the subject of the underlying claim.

Background

The claims in this case stemmed from the impacts of the Kenney Dam and reservoir (which was built in the early 1950s) to the flow of the Nechako River. The Nechako Nations sought an injunction and damages based on the common law torts of nuisance and on other grounds. Their private nuisance claim was grounded in the Nechako Nations' assertions of Aboriginal rights to fish in the Nechako River watershed and Aboriginal title to lands and beds of lakes or rivers in which they originally fished.

As discussed in our bulletin linked here, the Nechako Nations originally brought the claim against RTA alone. However, in 2016, RTA successfully applied to have the provincial and federal governments added to the litigation to address the claims of Aboriginal rights and title.1

At trial, the judge found that the Nechako Nations' Aboriginal right to fish linked to certain lands in the subject area was sufficient to ground an action in nuisance. The trial judge also found that their interest in and occupancy of certain reserves were sufficient to ground an action in nuisance. However, he found that the defence of statutory authority applied, meaning that RTA could not be held liable in nuisance. The trial judge issued the following declarations:

  1. The [Nechako Nations] have an Aboriginal right, as claimed, to fish for food, social, and ceremonial purposes in the Nechako River watershed; and,
  2. As an incident to the honour of the Crown, both the provincial and federal governments have an obligation to protect that Aboriginal right.

The Decision

Statutory Authority Defence Applies even when Aboriginal Rights are Impacted

The Court confirmed that interference with Aboriginal fishing rights linked to land (in this case, reserve lands and waterbeds adjacent to those lands) can ground a nuisance claim against private parties. It remains an open question whether interference with Aboriginal rights can be brought where those Aboriginal rights are not connected to an interest in land.2

Two issues were raised with respect to the defence of statutory authority: (1) had the trial judge misinterpreted the inevitable result aspect of the defence; and (2) was the defence rendered inapplicable on the basis that the statutory scheme unjustifiably infringes the Nechako Nations' Aboriginal rights?

After reviewing the relevant case law, the Court confirmed that in RTA's case, the defence of statutory authority clearly applies, as:

  • the statutory regime was specifically enacted in relation to the construction and operation of the Kenney Dam;
  • the statutory authority was unambiguous;
  • the legislature understood the impacts to fisheries and the legislative regime contemplated a nuisance flowing from the authorized works (both originally and as the scheme develop over time); and
  • by authorizing and continuing to authorize the works, the government "must have been taken to have authorized the nuisance itself", and that it was "practically impossible" for RTA to avoid the nuisance in conducting the operations as prescribed.3

The Court also rejected the Nechako Nations' argument that the defence was constitutionally inapplicable on the basis the legislative authorizations relied upon by RTA unjustifiably infringed the Nechako Nations' constitutionally protected Aboriginal rights. Instead, the Court noted that remedies for harm caused by the statutory regime lie against the Crown, not private parties.4

The Varied Declaration

The Court found the declaration issued by the trial judge too narrow to be of practical utility to the Nechako Nations, in light of their proven Aboriginal rights to fish. The government's role in managing the flow of the Nechako River and the chance for novel adverse impacts on the Aboriginal right, triggered an obligation on both levels of government to protect the Aboriginal right. Yet, the trial judge's declaration, as it stood, simply identified the Aboriginal right to fish and recognized a generic obligation on the Crown to protect that right.

Therefore, the Court changed the trial judge's declaration to make it more specific. The declaration now reads:

  1. The [Nechako Nations] have an Aboriginal right, as claimed, to fish for food, social, and ceremonial purposes in the Nechako River watershed;
  2. As an incident to the honour of the Crown, both the federal and provincial governments have a fiduciary duty to protect the [Nechako Nations'] established Aboriginal right to fish by consulting the plaintiffs whenever governments' action or conduct in managing the annual water allocation and flow regime for the Nechako River, pursuant to Rio Tinto Alcan Inc.'s water licences and agreements, raises the potential for a novel adverse impact on the right; and
  3. As an incident to the honour of the Crown, both the federal and provincial governments have a fiduciary duty to protect the [Nechako Nations'] established Aboriginal right to fish by ensuring that governments' ongoing and future participation in managing the annual water allocation and flow regime for the Nechako River, pursuant to Rio Tinto Alcan Inc.'s water licences and agreements, is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982.

Implications

Although the practical implications of the declaration remain to be seen, the messaging from the Court suggests that government actors will approach adverse impacts to the Nechako Nations' Aboriginal fishing rights with greater scrutiny as a result of this decision.

Key takeaways are:

  1. Private parties can be liable for nuisance for interfering with Aboriginal rights to fish that are linked to land.
  2. The defence of statutory authority is available to private parties to shield them from liability for nuisance claims grounded in Aboriginal rights. The fact that a statutory regime may harm Aboriginal rights does not render the defence of statutory authority inapplicable. Instead, remedies related to harm from a statutory regime lie against the Crown.
  3. Where significant negative impacts on established Aboriginal rights are being experienced from ongoing government conduct or activities, governments' fiduciary duties to protect established Aboriginal rights would include (i) consulting the Aboriginal rights holders when governments' action or conduct raises the potential for a novel adverse impact on the rights and (ii) ensuring the governments' conduct is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982.

Footnotes

1. For more background information, see our other bulletins on this case:

2. Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62 at para. 85.

3. Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62 at paras. 232 & 238.

4. Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62 at paras. 284 & 291.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.