Who knew I read so much (legal) fiction in law school?

On January 7, 2022 the BC Supreme Court released its' judgment in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15.

The Basics

Subject of the litigation in the Kenney Dam on the Nechako River in the interior of BC. The dam was authorized in the 1950s by the GC government to be built by Rio Tinto Alcan (RTA). This matter is related to previous litigation involving Rio Tinto Alcan and the Kenney Dam. They seek an injunction competing the RTA and both levels of government to restore a more natural hydrograph to prevent further damage and to restore the populations.

The two Plaintiffs are both Dakelh and are treated as separate bands under the Indian Act. Both the Plaintiffs claim an Aboriginal right to fish in the Nechako watershed and assert Aboriginal title to the lands from and the beds of the lake or rivers in which they have traditionally fished. They invoke these Aboriginal rights as the basis for bringing tort claims against Rio Tinto Alcan in nuisance and for breach of riparian rights.

The Plaintiffs claim that the construction of the Dam, the operation and the subsequent regulation of the Nechako hydrograph has affected the river and the fish and related fishery. In particular, the imminent extirpation of the Nechako White Sturgeon and a substantial reduction in the population of salmon, both sockeye and chinook.

The Results

While the Plaintiffs in this case were not successful in getting the injunction they were seeking, as the court found that the defence of statutory authority required the dismissal of the action, there is hope to be found. The court found that the plaintiff’s “Aboriginal right to fish is a legally sufficient foundation for an action in private nuisance” (paragraph 377). This provides clarity for Indigenous litigants that there is an avenue to pursue those who take actions which negatively impact their Aboriginal rights, even where it is not a matter of lack of consultation or government action.

In my experience, Indigenous nations often encounter an issue where there has not been a government action, to ground a duty to consult, but there have adverse impacts on their rights and title. In these cases, Indigenous nations have been left with little recourse to address harms to their rights and title. This case provides insight into an avenue that will allow for this gap to be filled by pursuing a claim of nuisance, and the use of tort law.

The Details

Another part of what makes this case so noteworthy, (and blog worthy!) is the way Justice Kent writes about Indigenous history, Aboriginal title and Crown sovereignty

One series of paragraphs I note is the following which discusses the impact of years of attempted assimilation and systemic discrimination.

[177] The legacy of 150 years of systemic discrimination and attempted assimilation is bleak and intractable. It has resulted in cultural erosion and alienation, relentless intergenerational trauma, and socio-economic marginalization. While representing only five percent of Canada’s population, Indigenous people endure massively disproportionate rates of poverty, interpersonal violence and family breakdown, addiction and substance abuse, youth suicide, lower levels of education, and higher unemployment. Many reserves lack basic human needs such as decent housing and clean water to drink. And mostly as a cumulative result of the foregoing, Indigenous people are hugely overrepresented in both the child welfare and the criminal justice systems of this country.

[178] Given these tragic realities, I have no hesitation whatever in making incremental extensions of the common law that might advance some small redress for Indigenous peoples, including, of course, the plaintiffs in this case.

Another is the discussion of the terra nullius and title below:

[194] If the doctrines of discovery and terra nullius are indeed “legally invalid” or simply inapplicable in Canadian law, what then is the legal justification validating the assertion of Crown sovereignty over Indigenous peoples and Indigenous lands?

[195] In the very same paragraph in which the Supreme Court of Canada in Tsilhqot’in denied application of the doctrine of terra nullius in Canada, the Court simply restated:

At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival . . . The Aboriginal interest in land that burdens the Crown's underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown