Court decisions continue to provide answers, or at least guidance, on the many remaining questions about the relationship between aboriginal groups and their members, and Canadian governments and citizens. The process of creating laws that answer these questions has been ongoing for decades and will continue for decades more.
Two recent cases which should be of interest to BC’s ranchers are discussed below. In preparing this article, I am indebted to the Aboriginal Law Groups of Cassels and Bennett Jones for their published case commentaries.
I use the term "aboriginal" because the Constitution Act of Canada 1982 refers to aboriginal people, meaning the Indian, Metis, and Inuit peoples of Canada.
In 1950 the Province authorized Rio Tinto to build hydroelectric facilities for its aluminium smelter in Kitimat. The facilities included the Kenney Dam and the Nechako Reservoir, from which water was diverted to propel turbines in the Kemano watershed.
In 2011 representatives of the Saik’uz and Stellat’en First Nations sued Rio Tinto, asserting that the dam, diversion and effect on water flows below the Nechako Reservoir affected the Nechako River and the First Nations’ aboriginal rights to fish and associated fishery.
Previous lawsuits by First Nations have been against governments. This is understood to be the first time that a private entity had been sued in "tort" (a civil as opposed to criminal wrong done by the defendant to the plaintiff). The two First Nations’ claim was based on "nuisance", a tort in which the property rights of the plaintiff have been significantly affected by the actions of the defendant.
Rio Tinto initially asked to have the claim summarily dismissed, based on the defense of statutory authority. However the British Columbia Supreme Court said there was a triable issue, but that aboriginal rights and title had to be proved, not merely alleged, before a claim based on interference with property rights could proceed. This issue went to the British Columbia Court of Appeal which ruled that the First Nations’ claims could go ahead even though the aboriginal rights and title were asserted and not proved.
The trial took 151 days of court time between 2019 and 2021. The Supreme Court of British Columbia decision was published on January 7, 2022. The court decided that there was, at minimum, an aboriginal right to fish and enjoy a fishery, and that aboriginal title probably existed, subject to overlap claims of other First Nations, at least on reserve land. The court further decided that these rights and interests of the First Nations had been severely affected by the dam and diversion.
Most significantly, the court decided that aboriginal rights can be the foundation for a civil action against a non-government entity – the duty on governments to consult and accommodate "does not mean that third parties, whether corporate entities such as [Rio Tinto] or individuals, are somehow immunized from tort liability for claims founded on Aboriginal interests".
The First Nations were ultimately unsuccessful at trial because the court decided that the defense of statutory authority applied and that Rio Tinto in performing the dam and diversion work according to statute, regulation, and permit requirements, was not liable for the damages resulting to the claimant First Nations. The court held that not only was the work properly authorized, but also Rio Tinto had always operated in compliance with these authorizations.
It is highly likely that the trial decision will be appealed to the British Columbia Court of Appeal and then to the Supreme Court of Canada.
Private entities including individuals can be liable to a First Nation in tort for a breach of asserted aboriginal rights and title.
There is a potential defense of statutory authority if the conduct – for example creating a dam and diversion - of the private entity being sued was expressly authorized or required by necessary implication under the relevant statute. Further, the permitted activity itself must always have been carried out complying with the exact terms of the authorization throughout the existence of the permitted activity.
Non-compliance with permits and other authorizations creates risk of liability for First Nation damages apart from any liability described in the authorizing statute, regulations or contracts.
It may be useful for a private entity/individual to examine whether any permitted activity of that entity is authorized by statute and has been carried out precisely as required by the permit; and as well to consider whether there is any potential that any aboriginal rights could be negatively affected by the permitted activity.
Most people in the resource sector have heard of UNDRIP, the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN in 2007, by legislation in British Columbia in 2019 and by Canada in 2021. The federal government’s legislation was intended to "affirm the Declaration as a universal international human rights instrument with application in Canadian law" and to provide a framework for federal implementation of the Declaration.
Cassels’ case comment of January 18, 2022, says "[T]he implications of UNDRIP legislation have been vigorously debated"-- a masterpiece of understatement.
Resource sector participants have wondered how the provisions for restitution or compensation to Indigenous people for their traditional territories which have been "confiscated, taken, occupied, used or damaged without their free, prior, and informed consent" will be addressed, as the Declaration goes on to say that "[U]nless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation…".
If the plain words and their literal meaning is to be applied, there is a contradiction with the processes devised by the Supreme Court of Canada over the past few decades, to deal with these issues in the context of the process of reconciliation in Canada.
The Saik’uz decision is important because it has been decided after the UNDRIP BC legislation was passed.
The trial court referenced UNDRIP in several parts of the decision, although it did not apply UNDRIP to determine the outcome, recognizing the conflict with prior Supreme Court of Canada decisions which are binding on judges in lower courts and acknowledging that Supreme Court of Canada direction is required for lower court judges to understand how to apply UNDRIP.
The court identified the extensive process required for First Nations to prove aboriginal title as a point of conflict between existing Canadian law and UNDRIP and highlighted the "absurdity of the exercise" required of Indigenous peoples to establish their historic rights, which are "unquestionable" under UNDRIP.
The court also referenced UNDRIP in support of its decision that aboriginal title is fully capable under common law of supporting a claim against a private entity. And the court recognized the Crown’s potential historic liability to the First Nations for past damages resulting from the authorization of Rio Tinto’s dam and diversion, as being of the same effect of Article 28 of UNDRIP.
The court said that even if UNDRIP is eventually interpreted merely as a statement of future intent, it supports a robust interpretation of aboriginal rights.
The UNDRIP comments made by the court in this trial decision are interesting because they suggest possible future approaches to its application.
However, until UNDRIP has been examined by the Supreme Court of Canada, exactly how it will be applied in the context of Canadian law remains uncertain.
One thing that is an absolute certainty, is that the cost of litigating claims such as the Saik’uz claim is ruinous for all but those with the biggest treasuries. The mind boggles at the cost if an individual were defending a Saik’uz type claim.
It’s interesting, then, that in the recent decision of Anderson v. Alberta, the Supreme Court of Canada may have opened the door not only for paying "advance costs" to an impoverished First Nations, but possibly extending that potential for other impoverished parties to public interest litigation.
The case involved the Beaver Lake Cree First Nation, an impoverished community dealing with food insecurity, inadequate housing, inadequate infrastructure, insufficient resources for education and health programs, poor water access and quality, and unemployment.
In 2008, the First Nation sued Alberta for improperly allowing its traditional lands to be taken up for industrial and resource development and compromising its ability to pursue traditional practices.
In 2018, the First Nation applied for "advance costs", that is for the Crown to fund part of the First Nation’s litigation expenses. It anticipated litigation costs of $5 million, having already spent $3 million on legal fees, from its own funds and third-party fundraising. The trial of the claim is scheduled for 120 days of court hearing, to begin in two years.
The trial court judge deciding the application awarded advance costs, with the First Nation, Alberta, and Canada obligated to contribute $300,000 each year for the litigation. Although Beaver Lake had more than $3 million in unrestricted funds, the First Nation was considered to be "impecunious" (no money) because it needed all of its existing money to address the community’s other priorities. The Alberta Court of Appeal reversed the decision because the First Nation had existing financial resources that it chose to spend on the community’s other priorities.
The Supreme Court of Canada said that an award of "advance costs" is a last resort, providing a basic level of assistance for public interest litigation, reserved for the rare and exceptional case where a refusal to award "advance costs" would amount to an injustice against the applicant personally and the public generally. The successful applicant must demonstrate impecuniosity, present a meritorious case, and raise issues of public importance.
The issue for the First Nation was whether it could successfully assert impecuniosity when it had $3 million in unrestricted funds. The Supreme Court of Canada decided that the "impecuniosity" requirement has enough flexibility to account for the First Nation’s realities, including competing spending commitments, resource restrictions, and fiduciary and good governance obligations.
The Supreme Court of Canada said that an applicant can be considered "impecunious" where it cannot meet its "pressing needs" while also funding the litigation. The court established a four part test to assess whether or not an Indigenous government is impecunious after prioritising its pressing needs:
This will allow the court to determine whether the Indigenous government has surplus resources to fund the litigation, in whole or in part.
Commentators indicate that the decision improves Indigenous governments’ ability to access justice and advance aboriginal and treaty rights and other public interest matters, and advances reconciliation.
The Supreme Court of Canada decision set out the "pressing needs" principle in the context of applicants generally, not restricted to Indigenous governments.
Commentators see this statement as an indication that the door may be open for courts dealing with future applications for "advance costs" to apply the "pressing needs" principle to applicants other than Indigenous governments, with other public interest litigants having access to funding to allow them to advance their position in litigation.
One hopes that potential would be extended to impecunious individuals with other "pressing needs" who are defending a claim in public interest litigation.