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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.

[196] This construct has become a fundamental part of the framework animating Aboriginal law jurisprudence following 1982, when s. 35 of the Constitution Act, 1982 formally recognized and affirmed the existing Aboriginal rights of the Indigenous peoples in Canada. But, one may rightly ask, if the land and its resources were owned by Indigenous peoples before the arrival of Europeans, how, as a matter of law, does the mere assertion of European sovereignty result in the Crown acquiring radical or underlying title? How and why does pre-existing Indigenous title somehow become subordinate?

[197] Rather remarkably, the Supreme Court of Canada has never directly answered this question even though the Court itself noted in Delgamuukw at para. 145, “it does not make sense to speak of a burden on the underlying title before that title existed”.

[198] True, in the same paragraph, the Supreme Court suggests that Aboriginal title “crystallized” at the same time sovereignty was asserted, hence presumably permitting the layering/burdening of radical title, but the logic of this is perplexing. Some argue, in my view correctly, that the whole 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: see Borrows 2015, above at para. 182, and John Borrows, “Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia(1999) 37:3 Osgoode Hall Law Journal 537. (emphasis mine)

Another is the discussion of the impact of the UN Declaration on the Rights of Indigenous Peoples and whether it will have meaning or rather it is just political bromide. The implementation of UNDRIP in BC is an issue I wrote about several years ago for the Asper Centre for Constitutional Rights Newsletter.

[212] It remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title. Even if it is simply a statement of future intent, I agree it is one that supports a robust interpretation of Aboriginal rights. Nonetheless, as noted above, I am still bound by precedent to apply the principles enunciated by the Supreme Court of Canada to the facts of this particular case and I will leave it to that Court to determine what effect, if any, UNDRIP legislation has on the common law.

The way Justice Kent analyzes the historical context and the case law, shows true efforts towards reconciliation albeit, he recognizes his own limits in his role. It is hopeful to see this shift.

Many of these details speak for themselves, but it's important to remember how far we have come. Less than 100 years ago First Nations people could not legally hire a lawyer and today, we have judges recognizing the the systemic oppression and discrimination Indigenous people have faced, and the attempts to remove us from our land. I hope that in another 100 years we have come even further.

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