Canada: Private Liability In Tort For Breach Of Aboriginal Rights Is Here To Stay

Recently, the BC Court of Appeal ("BCCA") released its decision in Thomas v Rio Tinto Alcan Inc, 2024 BCCA 62. The decision largely upheld the lower court's decision. However, the court notably varied the declaratory relief granted to the appellant First Nations. The BCCA declared that the provincial and federal governments have a fiduciary duty to protect the appellant First Nations' Aboriginal rights.

History

This appeal stems from a January 7, 2022 decision of the BC Supreme Court which found that industry may be liable in nuisance for breaches of Aboriginal title and rights, and interests in reserve lands. In that case, statutory authority was held to be a full defense. However, the First Nations proved their Aboriginal right to fish for food, social, and ceremonial purposes in the Nechako River watershed. The trial judge issued a declaration that each government has an obligation to protect those rights.

The history of the case involves the construction of the Kenney Dam and the subsequent hydrograph on two neighboring First Nations, the Saik'uz First Nation and the Stellat'en First Nation. The First Nations sought interim and permanent injunctions restraining the Rio Tinto (the company responsible for building the dam) from continuing acts of nuisance, and a mandatory injunction requiring Rio Tinto to release waters into the Nechako watershed and to alter the flow regime of the river to its former state. Damages were sought in the alternative.

The full facts of the case and details about the decision can be found in our article here.

On Appeal – Expanding Declaratory Relief

The BCCA upheld the claim in nuisance and the defense of statutory authority and dismissed a large portion of the appeal. The appeal was allowed only on the issue of declaratory relief.

The BCCA found the trial judge's declaration too narrow. The First Nations had successfully established an Aboriginal right and that the water diversion was affecting that right. As a result, dismissing the claim in nuisance does not dismiss the possibility that the right was impaired. The First Nations established at trial that the federal and provincial governments are involved in regulating the Nechako River, a regulation that adversely affects the established Aboriginal right. The BCCA agreed that the existence of an Aboriginal right to fish in the Nechako River imposes a positive duty on BC and Canada to protect that right and is properly characterized as a fiduciary duty (para 422). The First Nations are owed a duty to consult from the governments in respect of annual water collection and the flow regime in the river, whenever actions are contemplated that could adversely impact their Aboriginal right. The governments have discretionary control over the regulation of the river where the First Nations exercise their Aboriginal right, engaging the Honour of the Crown (para 428). The federal and provincial government's fiduciary duty to the First Nations thus requires them to act in reference to the First Nations' best interest (para 429). The Court notably distinguished acting in their best interest to acting in their sole interest.

The BCCA fell short of adding too many specifics to the declaration, exercising caution towards indirectly providing relief against Rio Tinto which the court had denied. However, the BCCA determined that the declaration at trial was too narrow, and provided no practical utility to the appellants.

The BCCA amended the declaration, confirming that the scope of BC and Canada's fiduciary duties owed to the First Nations includes the duty to protect the First Nation's Aboriginal Right to fish in the governments' annual water allocation and flow regimes. In addition, the declaration included a recognition that the Crown's fiduciary duty includes the duty to consult with the First Nations where the water regime raises the potential for a novel adverse impact on their established right.

Implications

As stated in a press release from the Saik'uz and Stellat'en First Nations, this is a "very significant step forward in their long journey" against the harm done to the Nechako River and their Aboriginal rights. On a broader level, this decision sets a strong precedent for other First Nations who have rights adversely impacted, setting the stage for the development of a comprehensive consultation scheme regarding regulation of waters.

Thomas v Rio Tinto Alcan Inc. adds to the growing body of jurisprudence regarding the Crown's ongoing duty to consider cumulative impacts to Aboriginal rights. As first outlined in Yahey v. British Columbia, 2021 BCSC 1287, we continue to see a shift in law towards a recognition of the Crown's ongoing obligation to consider Aboriginal rights in the broader context of resource management regimes.

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