Sep 14, 2015

Aboriginal title and rights exist prior to declaration or recognition, and they do not need to be recognized before a civil claim can be advanced.

BACKGROUND: The Respondent, Rio Tinto Alcan Inc., operates a hydroelectric dam on one of the upper reaches of the Nechako River, creating the Nechako Reservoir. The dam is operated pursuant to authorization granted by the British Columbia government. The Appellants, Sai’uz and Stellant’en First Nations, commenced the underlying action against the Respondent in September 2011. They claimed against the Respondent in nuisance and for breach of riparian rights as a result of the dam’s operation. They sought relief in the form of interlocutory and permanent injunctions restraining the Respondent from committing the nuisance and interfering with their rights. The Respondent brought an application seeking an order for summary judgment under Rule 9-6 of the Supreme Court Civil Rules dismissing the claim on the basis that the defence of statutory authority was a full defence to the claim. It also sought an order striking out a paragraph in the Appellants’ notice of civil claim and five paragraphs of their response, on the basis that they constituted an impermissible collateral attack in connection with the Respondent’s defence of statutory authority. In the alternative, the Respondent sought an order under Rule 9-5(1)(a) striking out the whole notice of civil claim on the basis that it did not disclose a reasonable cause of action, and dismissing the action. The chambers judge found that the Respondent had provided no evidence to prove that there were no “practically feasible alternatives” to the act causing the nuisance, and was not satisfied that the Respondent had established the defence of statutory authority. He dismissed the application for summary judgment on that ground. He also rejected the Respondent’s argument that the Appellants’ position in their reply as to the constitutional inapplicability of the statutory authority amounted to an impermissible collateral attack on the Respondent’s water licence. The chambers judge noted that the common law concept of riparian rights was extinguished by legislation in BC, and found that the key problem with the intention of the Appellants to prove their Aboriginal title and other rights in the underlying action was that their claim was not against the Crown but the Respondent. He concluded that a claim in nuisance or for breach of riparian rights against the Respondent, based on asserted but unproven claims to Aboriginal title and rights, had no reasonable chance of succeeding. He also observed that all water rights were vested in BC prior to the creation of the Appellants’ reserves, and that those rights were not conveyed to the federal Crown when the lands were transferred to it for the purpose of creating reserves. He granted the application to strike out the notice of civil claim in its entirety and dismissed the action. The Respondent cross-appealed the dismissal of its application for summary judgment.

APPELLATE DECISION: The appeal was allowed in part. The Court of Appeal identified three claims in the Appellants’ notice of civil claim: private nuisance, public nuisance, and breach of riparian rights. Although Aboriginal title is not ownership in fee simple, it would give the Appellants the right to possess the lands. The Court therefore found that it was not plain and obvious that the Appellants did not have sufficient occupancy to found an action in private nuisance. Further, the right to trap has been held to be sufficient to found an argument that the holder of the right can maintain an action in private nuisance, and the Appellants plead facts that supported a claim for an Aboriginal right to harvest fish. On the claim for public nuisance, the Court similarly found that it was not clear that the Appellants had no reasonable chance of succeeding. Public nuisance is defined as any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience. Whether an activity is a public nuisance is a question of fact, taking into account factors such as the inconvenience caused by the activity, the difficulty in lessening the risk and the character of the neighbourhood. It was arguable that unreasonable interference with the public’s interest in harvesting fish from the Nechako River system is a type of interference protected by the tort of public nuisance. The chambers judge erred in striking these claims, as well as the claim for breach of riparian rights to the extent it was based on Aboriginal title and rights, because the assertions of Aboriginal title and rights had not yet been proven. The law is clear that such title and rights exist prior to declaration or recognition, and they do not need to be recognized before the claim can be advanced. The Court found that the chambers judge was correct with respect to the claim to entitlement to riparian rights based on reserve rights, as it would have no reasonable prospect of success. The Court agreed with the chambers judge’s reasoning on the defence of statutory authority and on collateral attack, and dismissed the cross-appeal.