Case Brief: Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., 2022 BCSC 15
By Kajia Eidse-Rempel and Courtenay Jacklin
On January 7, 2022, the BC Supreme Court released reasons for judgment in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc.[1] The main issue in this case was whether Aboriginal rights can base a lawsuit in the tort of nuisance against private, non-governmental entities.
What this case is about
In the 1950s, the provincial government authorized the Aluminum Company of Canada (now Rio Tinto Alcan Inc., referred to as “Rio Tinto”) to build the Kenney Dam to produce hydropower for the smelting of aluminum. The dam and resulting reservoir blocked the natural water flow of the Nechako River.
In this action, the Saik’uz First Nation and Stellat’en First Nation both assert Aboriginal rights to fish in the Nechako watershed and Aboriginal title to the lands, including lands forming the banks and beds of the Nechako River, on which they have traditionally fished. Saik’uz and Stellat’en argued that the construction of the Kenney Dam and Rio Tinto’s regulation of the Nechako River has profoundly harmed the River and damaged their fisheries. It has caused a substantial decline in the population of both Nechako White Sturgeon and sockeye salmon to the extent that the former is at risk of extinction and the fishery of the latter has become a mere shadow of its former abundance.
Saik’uz and Stellat’en sought an injunction compelling Rio Tinto and the provincial government to restore a more natural water flow to both prevent further damage to the fisheries and restore the historical abundance of fish.
What the court found
- Aboriginal rights can form the basis of a private nuisance claim
The court recognized Saik’uz and Stellat’en had an Aboriginal right to fish for food, social and ceremonial purposes in the Nechako watershed. It affirmed that Aboriginal rights – whether independently or as an incident of Aboriginal title – can form the basis of a common law action in private nuisance.
The court held that the installation and operation of the Kenney Dam and reservoir and the resulting decline in fish populations in the Nechako watershed has had hugely negative and disproportionate impacts on Saik’uz and Stellat’en as Indigenous communities. The court found that Rio Tinto would be liable to Saik’uz and Stellat’en for the tort of private nuisance; however, the company is immunized from liability by the defence of statutory authority. Rio Tinto had complied with all government-imposed regulatory requirements in the construction and operation of the Kenney Dam.
The court concluded that the only legal remedy available to Saik’uz and Stellat’en is against the government. However, the court acknowledged past jurisprudence from the Supreme Court of Canada that limits both the arguments and remedies available to Saik’uz and Stellat’en. The result is rather unsatisfying, which the court evidently recognized. The court strongly urged government to consult in good faith to seek resolution of this dispute. To nudge government along in this direction, the court held that the duty to consult on water flow is now triggered by the establishment of the Aboriginal right to fish.
2. The assertion of Crown sovereignty is a legal fiction used to justify the displacement of Indigenous peoples
Interestingly, prior to undertaking its legal analysis, the court decided to address the question of the legitimacy of the sovereignty of the Canadian state. The court understood the dispute about whether Aboriginal rights trump contractual rights and proprietary interests historically acquired from the Crown by third parties to squarely challenge Crown sovereignty.
Given the repudiation of the doctrine of discovery and terra nullius in Canadian law, there is no longer any clear legal justification underlying Canada’s sovereignty. The court acknowledged that Crown sovereignty as a construct “is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada” (para. 198). The court concluded this led to two “harsh realities”. First, the system of law and government imported by settlers into British Columbia and superimposed upon Indigenous peoples has become firmly and intractably entrenched, both as the foundation of Canadian society and also of the legitimacy of the court (para. 202). Second, the court is bound to apply common law and statutory law subject only to incremental changes not prohibited by precedent or legislative change (para. 204).
Why this case is important
It seems that once again, the Canadian legal system gives with one hand and takes with the other. This decision affirms that Aboriginal rights can form the basis of the common law tort of nuisance against private third parties, while simultaneously accepting that the defence of statutory authority may immunize defendants from liability.
The court evidently wrote the decision with the full expectation that it would be appealed all the way up. While it is hopefully clear to government and Rio Tinto that it is time for a new approach to reconciliation, the most likely outcome will be an appeal to the BC Court of Appeal. Given the outcome represents a substantial loss for Saik’uz and Stellat’en, they are the parties most likely to make that appeal. Notice of appeal must be filed within 30 days of the decision (i.e. on or before Monday, February 7, 2022).
[1] Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII).