The Supreme Court of British Columbia struck out a claim brought by two First Nations against Rio Tinto Alcan Inc., in relation to the storage and diversion of water at the Kenney Dam, based upon the law of private nuisance and interference with riparian rights.  A plaintiff in such an action must have a proprietary interest in the affected land to have standing. Holders of asserted, but unproven, Aboriginal title and rights do not have standing. Claims based upon riparian rights also have no reasonable prospect of success because common law riparian rights in British Columbia had been extinguished by legislation prior to the creation of the plaintiffs’ reserves in 1938. The Court also emphasized that the Crown is the appropriate defendant in claims relating to Aboriginal rights and title, not private parties like Alcan. The Court therefore allowed the defendant’s application for an order striking out the claim, but its application for summary judgment, on the basis of the defence of statutory authorization, was dismissed.

This action was brought on behalf of the Saik’uz First Nation and the Stellat’en First Nation. The plaintiffs allege that the construction of the Kenney Dam in 1952 by the defendant Alcan has diverted and altered the water flowing to the Nechako River, with significant adverse impacts on the waters and its fisheries resources. The plaintiffs claim that they were neighbouring First Nations of Central Carrier ancestry, with ownership and use of territory along the Nechako at the time of British sovereignty in 1846. They allege that the diversion and alteration of water flow constitutes an unreasonable interference with their proprietary rights, causing harm to such interests. They bring this action on the basis of the law of private nuisance or, in the alternative, public nuisance. They also relied upon riparian rights based upon Aboriginal title interests and reserve land interests.

Alcan defended the claim on the basis that the water diversion and storage activities was undertaken with the express authorization of the Province of British Columbia. Alcan also argued that the plaintiffs’ claims of Aboriginal land rights are not proven, and such causes of action are reserved for those recognized at law as possessors of the lands in question.

In this application, Alcan relied upon both Rule 9-5 (striking pleadings) and Rule 9-6 (summary judgment) of BC’s Supreme Court Civil Rules. They argue that the defence of statutory authorization constitutes a full defence to the claims, and an order of summary judgment is appropriate. They further alleged that the plaintiffs’ claim discloses no reasonable cause of action and should be struck out. Private nuisance claims cannot be based upon asserted but unproven Aboriginal interests in land, or interests in Indian Act reserves, as such claims are unknown to the law.

Cohen J. reviewed the nature of the plaintiffs’ claim based upon the pleadings. He stated the issues as follows:

The first issue to be decided in Alcan’s application is whether Alcan is entitled to summary judgment on the basis of the defence of statutory authorization. The sub-issues that comprise this first issue include:

(1) Is the statutory authorization defence suitable for resolution by way of summary judgment under R. 9-6?
(2) Has Alcan established the defence of summary judgment?

The second issue to be decided in Alcan’s application is whether Alcan is entitled to an order dismissing the plaintiffs’ notice on the ground that it discloses no reasonable claim. The sub-issues that comprise this second issue include:

(1) Do holders of unproven Aboriginal title and rights have a cause of action against private persons in private or public nuisance or for breach of riparian rights for interference with the claimed rights?
(2) Is there any basis in law for the plaintiffs’ claims to private nuisance or for breach of riparian rights incidental to their reserve interests?

A summary judgment order acts as a filter for unmeritorious claims. An application under Rule 9-6 is decided on the basis of the pleadings and evidence actually before the court. A court should decide an issue of law only if there is no real dispute about material facts and the law is well-settled.

The Court reviewed the defence of statutory authorization. The burden of proof rests on the defendant. It must be established that the act causing the nuisance is expressly or implicitly authorized by statute, and that the nuisance is the “inevitable result” of the statutorily-authorized action. The plaintiffs allege that this defence is a question of mixed fact and law, and therefore rarely suitable for summary judgment. Cohen J. agreed that this defence generally involves a fact-specific inquiry, but it is not inappropriate in all cases to deal with the issue on a summary basis.

The Court held that, in this proceeding, it would be inappropriate to decide the statutory authorization defence in a summary judgment application. Alcan argued that its licence authorized the time, place and amounts of water storage, and it is the same operations that are alleged to be a nuisance. Cohen J. did not accept that argument. Alcan incorrectly focussed on the source of the nuisance, rather than the actual nuisance claimed. The harm alleged by the plaintiffs is not the mere storage and diversion of water, but the interference to their rights. The issue is whether Alcan is authorized to store and divert water in a manner that results in the particular harms. Cohen J. stated:

The question is whether the disturbance of the water, in a manner that results in the particular types of harm alleged by the plaintiffs, is inevitable from the operation of the dam. That question involves an examination of the various options available to Alcan in operating the dam. If there are alternative options that are “practically feasible” and would avoid the alleged harms, then the harms cannot be said to be the inevitable result of Alcan’s operation of the dam pursuant to the Licence. …

Simply because the impacts alleged by the plaintiffs are the result of acts authorized by the Licence does not make them one and the same, nor does it establish the “necessary causal connection” as claimed by Alcan. To treat the impacts in that way would render the inevitable result test largely redundant.

The question under the second branch of the statutory authority inquiry is whether the impacts were the inevitable result of the diversion of water authorized by the Licence. That involves a factual inquiry to determine if there are practically feasible alternatives that would avoid the impacts.

The Court was not satisfied that there was “no genuine issue” for trial. Alcan failed to establish the defence of statutory authorization and the application for summary judgment was therefore dismissed,

The Court, however, allowed Alcan’s application under Rule 9-5 to strike the plaintiffs’ pleadings on the basis that they disclose no reasonable claim.

To succeed in such an application, it must be shown that it is “plain and obvious” that the pleadings disclose no reasonable claim, assuming all pleaded facts to be true. Whether the evidence substantiates the pleaded facts is irrelevant to a Rule 9-5 motion. The Courts err on the side of permitting novel claims to proceed to trial. Cohen J. also noted that there is authority to suggest that novel actions involving Aboriginal rights and interests should not be dismissed or rejected without a full factual record. The law of Aboriginal rights and title is “a special and highly distinctive body of constitutionally-protected principles”.

The Court reviewed leading cases on Aboriginal rights and title, including Delgamuukw and William v. British Columbia. Cohen J. also reviewed the nature of Indian Act reserves, citing cases such as Wewaykum and Osoyoos. The nature of the Aboriginal interest in reserve land is fundamentally similar to the nature of Aboriginal title.

With respect to riparian rights, the Court held that the common law concept of riparian rights in British Columbia was extinguished by legislation. The doctrine of riparian rights, however, has been raised from time to time in novel actions, such as Pasco v. C.N. Rail (1985) and Halalt First Nation (2011).

Private nuisance is a tort committed against the land itself, rather than against any person. The common law requires the plaintiff to have a proprietary interest (legal or equitable) in the affected land in order to have standing. There has been a divergence from this strict requirement in only a small number of Canadian cases, such as an early Alberta decision about matrimonial property. The law in British Columbia indicates that “people who occupy premises as a home, without ownership or other interest in the property, do not have standing for an action in private nuisance”. There is also a small number of cases involving Aboriginal rights and the law of nuisance. In the case of Island Protection Society v. BC (1979), two Haida members were granted standing on the basis of using and occupying land for trapping animals, harvesting seafood and fishing. In Bolton v. Forest Pest Management Institute (1985), the BC Court of Appeal held that the plaintiffs’ interests (registered trap lines and Indian fish food permits) constituted a common law profit à prendre. Such an argument failed in the Nova Scotia case of Palmer v. Nova Scotia Forest Industries (1983) because the Aboriginal plaintiffs were unable to establish the rights to hunt and fish on the land in question. Cohen J. noted that the Palmer case was the only decision that included a specific consideration of whether an Indian reserve interest could ground a claim in private nuisance.

The Court held that the plaintiffs’ claim based upon private nuisance has no reasonable prospect of success. The law of private nuisance, as it currently stands, does not recognize a plaintiff who has claimed, but not yet established, an interest in land.

The plaintiffs argued that they intend to prove their claims to Aboriginal rights and title at trial. Cohen J. held that the key problem with this argument is that the Crown is not a party. He stated:

The assertion and resolution of claims to Aboriginal title and Aboriginal rights is inherently intertwined with the ongoing process of reconciliation of Aboriginal rights with Crown sovereignty. While, ordinarily, a claim in nuisance would not engage the duty to consult or accommodate or the broader framework for reconciliation in Canada, the Aboriginal plaintiffs in this case must still establish either the Aboriginal title or the Aboriginal rights that they say ground their claim.

Thus, the Crown is a key party in this action as it attempts to establish and delineate the scope of Aboriginal title or rights. Indeed, as held in Tolko at para. 43 and Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700, at para. 978, until there is a finding of Aboriginal title, there must be a presumption that lands not held privately are Crown lands.

Cohen J. further stated:

This Court has already expressed misgivings about conducting tort litigation as a vehicle for asserting claims to Aboriginal title or rights: Tolko at para. 49. Consultation, accommodation, and negotiation are without doubt the preferred routes to reconciliation of Aboriginal rights with the assertion of Crown sovereignty: See William at para. 143; Haida at paras. 14, 38. Until an assertion of Aboriginal title and/or rights is proven, it is the honour of the Crown that protects the pending claim. There is no similar obligation on third parties at this stage.

Cohen J. held that the trial would be dominated by issues and evidentiary procedures that private parties such as Alcan are “not well-positioned to contest”. The Crown is the only party who can properly fulfil the role of adversary in such an action.

In regards to the private nuisance claims based upon riparian rights and Indian reserve interests, Cohen J.  held:

I accept the argument of Alcan that there is no reasonable prospect of success to the plaintiffs’ claim that, on the basis of their reserve rights, they have common law riparian rights to the adjoining waters. As Alcan points out, by no later than 1925, all riparian rights in respect of any stream were vested in the Province by means of legislation. The plaintiffs’ reserves were not created until 1938. As a result of the principles articulated in Wewaykum, the federal Crown could not attach any rights to reserve property until that property was conveyed to it by the Province. It was therefore impossible for the federal Governor in Council to have conferred riparian rights on the plaintiffs’ bands, as the federal Crown never had such rights to give.

Therefore, I conclude and find that a claim in private nuisance, or for breach of riparian rights, based on an Aboriginal reserve interest has no reasonable chance of succeeding.

The Court therefore held that Alcan was entitled to an order striking the whole of the Notice of Civil Claim. The foundation of the plaintiffs’ claim against Alcan is fatally flawed.

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver


Scott Kerwin


Aboriginal Law