A B.C. judge has rejected a bid by two First Nations to change the flow of a river to help rebuild fishing stocks devastated by the construction of a dam in the 1950s but has also cautioned that his ruling does not mean that non-governmental parties can never be held liable for claims founded on Aboriginal interests.
The Saik’uz and Stellat’en First Nations were attempting to get Rio Tinto Alcan (RTA) to change the flow of the Nechako River, which was dammed in the 1950s in order to provide electricity of an aluminum smelter. For its part, RTA argued that Aboriginal rights can only be asserted against the Crown and the construction of the dam and operation of its reservoir were explicitly authorized by the government, meaning that statutory authority immunizes them against liability.
And while B.C. Supreme Court Justice Nigel Kent rejected the two nations’ bid, siding with Rio Tinto Alcan on the statutory authority argument, he also held that private, non-governmental parties can be brought to court over any alleged breaches of Aboriginal rights (Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc. 2022 BCSC 15).
“For sure, the constitutional status of those rights imposes limitations upon and could trigger duties to consult and accommodate by the provincial and federal governments who, unlike RTA, also have obligations to the plaintiffs arising from the honour of the Crown and the law of fiduciary obligations,” he wrote in his Jan. 7 ruling. “But this does not mean that third parties, whether corporate entities such as RTA or individuals, are somehow immunized from tort liability for claims founded on Aboriginal interests.”
And federal and provincial governments have an obligation to protect the nations’ Aboriginal right to fish by “taking all appropriate steps to protect the fish and to act honourably in doing so,” Justice Kent wrote.
“The installation and operation of the Kenney Dam and related reservoir have harmed the fish and the fishery in the Nechako watershed to such an extent that RTA would have been liable to the plaintiffs for the tort of nuisance, but for the existence of the defence of statutory authorization,” he wrote. “The harm to the fish was the inevitable result of the approvals, permits, agreements, and directions made by both levels of government over the years. Such steps were taken without any consultation with or consent of the plaintiff First Nations and hence amount to a historical infringement of their Aboriginal rights.”
Maegen Giltrow, Ratcliff LLP
“This is a big deal in terms of the causation and the Crown’s positive obligations to protect the fish and protect the rights and the court taking away any arguments against causation, making it clear the diversion is an ongoing harm to the sturgeon and the salmon,” she said. “That is a pretty heavy obligation on the Crown coming out of that.”
And the court’s finding on liability “opens up a whole range of claims,” said Giltrow.
“This puts Aboriginal rights at least on par with other legal rights and other protections against third parties — and that had been an open question,” she said. “Our clients’ view is that in law their rights shouldn’t be subordinate to property rights and legal rights, so we have clarified that structure. And it compels third parties to consider how they are carrying out their actions to ensure that they are not causing nuisance but other substantial harms.”
Daniel Bennett of Norton Rose Fulbright, who represented RTA in the case, said in an e-mail the court’s “reasons reflect its efforts to balance Indigenous rights on one hand with the legitimate expectations of private parties on the other.”
“The reasons provide certainty: entities operating lawfully under Crown authorizations permitting their conduct can be confident that any statutory authority they have extends to claims grounded in Aboriginal rights, and that those authorizations cannot be indirectly challenged in a tort claim,” he said. “This holding should avoid surprises where an entity has been operating lawfully. But it is important to recognize that the court did not find that industry can never be liable but only that industry is not liable when it fully meets all of its legal obligations, including strict compliance with its licences and authorizations, based on the defence of statutory authority.”
But Giltrow said “it will be interesting” to see what it will take for companies to achieve a statutory authority defence down the road.
“In this case we are dealing with a pretty old industrial development and some pretty old language, but in the permissions it grants these days the government is becoming more cognizant of its obligations to Indigenous peoples,” she said. “And governments will put obligations on companies to mitigate and avoid harm, so I’m not sure this fact scenario plays out every time and the way permission is granted companies may not be interpreted to have the same leeway that Rio Tinto Alcan did in this case.”
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