Thomas v. Rio Tinto Alcan Inc., 2013 BCSC 2303
In this decision, the British Columbia Supreme Court struck an action for injunctive relief brought by two First Nations against Rio Tinto Alcan (Rio Tinto). The First Nations had advanced claims in private nuisance and breach of riparian rights. In striking the claims, the Court held that they had no reasonable chance of success because:
1. in order to succeed on their claim in nuisance, the First Nations needed a proven interest in land and not merely an asserted, but unproven, claim to aboriginal rights and title; and
2. the First Nations' interests in Reserve lands did not confer on the First Nations sufficient riparian or property rights to support a claim in nuisance or breach of riparian rights.
This case also provides a cautionary tale for industry in that the Court imposed significant restrictions on the availability of the defence of statutory authorization.
The claim was commenced by the Saik'uz First Nation, Stellat'en First Nation, and their respective Chiefs (Plaintiffs). The Plaintiffs claim aboriginal rights and title along the Nechako River, including rights and title to the riverbed and its banks. They sought an interim and permanent injunction to restrain Rio Tinto from continuing the alleged nuisance resulting from its water diversion activities in connection with its operation of the Kenny Dam (in operation since 1952). The First Nations alleged that their claimed aboriginal rights and title or alternatively their interests in Reserve lands amounted to proprietary interests sufficient to ground a claim in private nuisance and their claim that the water diversion impacted their common law riparian rights. Both propositions were rejected by the Court.
In addition to its application to strike the Plaintiffs' claims, Rio Tinto sought to have the claims dismissed on summary judgment on the basis that it was entitled to rely on the defence of statutory authorization, because its water diversion operations were carried out in accordance with the terms of a license issued by the Province. The Court rejected this argument on the basis that there was no evidence before it that the alleged impacts were the inevitable result of authorization or that there were no practical alternatives that may be available for operating the dam to avoid the alleged impacts.
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