The Categories of Nuisance are Not Closed: Developing a Canadian Common Law of Nuisance

I. Introduction

Canadian courts now appear to have re-committed to the traditional nuisance paradigm; that nuisance is, “at its core… a tort seen as being committed against the land itself.”^[1] “The land”, for this purpose, “as generally in the law of property”, includes things physically attached to the land (such as buildings) and any “rights… which attach [to the land] in law”.^[2]

Within this paradigm, therefore, the threshold inquiry is whether the plaintiff has a (legal or equitable) interest attached to the physical land that is sufficient to bring it within this definition of “the land”. If so, the plaintiff is entitled to use and enjoy the physical land in a way that is consistent with their interest in it; thus, the nature of the plaintiff’s interest in land both establishes their standing to bring an action in nuisance and demarcates the nature and scope of the “use and enjoyment” to which the plaintiff is entitled. That entitlement is not strict or absolute, and “[o]ne person’s lawful and reasonable use of his or her property may indirectly harm the property of another or interfere with that person’s ability to fully use and enjoy his or her property.”^[3] The question of whether a particular interference must be tolerated is determined through an inquiry into its “reasonableness” (or otherwise)^[4] as “a means of reconciling conflicting interests in connection with competing uses of land.”^[5] The nature and scope of those conflicting interests, as determined at the threshold inquiry stage, will therefore always be relevant to the reasonableness inquiry through which reconciliation is effected.^[6] The reasonableness inquiry concerns the defendant’s interference the plaintiff’s use and enjoyment of their land in a way that is consistent with their interest in it; the nature of that interest is key to the balance effected at this stage.

Despite its significance, however, the threshold inquiry receives scant attention in all but a very few cases,^.[7] the question of standing being quickly dispatched by establishing whether the plaintiff has a “proprietary interest” in the land^[8] (as identified in a settled and finite list of such interests). From that point, the focus shifts to the second stage of the nuisance inquiry i.e. the reasonableness of the factual interference in question, with the nature and scope of a plaintiff’s right to “use and enjoyment” folded into that inquiry without further examination. While a plaintiff’s entitlement to the use and enjoyment of land will always be consequent on the nature of their interest in that land, that relationship generally remains implicit within the nuisance analysis.

The threshold nuisance inquiry was necessarily brought into focus by the question, recently considered in the British Columbia case of Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc.)^[9], of whether certain Aboriginal rights were interests attached to the land sufficient to found an action in nuisance. Aboriginal rights arose by definition prior to the arrival of British sovereignty and the common law in Canada and therefore do not fall within the traditional common law categories of proprietary interests. Nor is their recognition as legal rights attached to the land dependent on compartmentalisation within existing common law categories through processes of analogy; the Supreme Court of Canada has emphasised the sui generis nature of Aboriginal rights and the importance of interpreting and applying those rights on their own conceptual terms.^[10] The court in Thomas, accordingly, rejected the defendant’s argument that because “the conventional nomenclature of nuisance law (such as ‘proprietary interests’)” was not “technically descriptive of Aboriginal rights” the plaintiffs could not bring a claim in nuisance “against a defendant whose use of land unreasonably interferes with those rights”;^[11] what mattered, for the purposes of the court’s analysis, was not semantics but the real connection between the plaintiffs’ rights and the land in question (and presumably, in the mists of English history, this is also the basis on which traditional proprietary rights would have become recognised as such). Incontrovertibly, Aboriginal title (as described infra) will fall within an (incrementally) expanded category of rights supporting a cause of action in nuisance; depending on the depth and nature of their connection to a specific piece of land, according to Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., that expansion may also apply to an Aboriginal right to fish.

As described above, the nature of a plaintiff’s interest in land is not only the source of their standing to sue in nuisance; it also determines the nature and scope of a plaintiff’s entitlement to use and enjoyment of the land in a way that is consistent with that interest. Just as Aboriginal rights are themselves sui generis, therefore, the nature and scope of a plaintiff’s entitlement to use and enjoyment in a way that is consistent with those rights cannot be defined in terms of traditional common law proprietary interests. While an Aboriginal right to fish may be broadly analogised to a profit a prendre, for example, it is not identical to that common law interest; Aboriginal rights are qualitatively distinct in a way that makes them both thicker and weightier than a mere right to use. That thickness and weight, in turn, informs the question of whether use and enjoyment of the land in connection with and corresponding to that right has been unreasonably interfered with. Thus, by reason of their distinctive nature (as described infra), an interference with land that is unreasonable in relation to a plaintiff’s Aboriginal rights attached to the land may not be unreasonable in relation to a plaintiff’s profit a prendre interest in that land.

The second part of this article briefly explains the nature of Aboriginal rights attached to land as recognised and defined by the Supreme Court of Canada, and guaranteed by the Canadian Charter of Rights and Freedoms. The third part discusses the reasoning and conclusions of the British Columbia Supreme Court and Court of Appeal in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc. together with the legal history and factual background of that case^[12] As described in the following parts, Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc is a decisive turning point in the incremental development of a distinctly Canadian common law of nuisance that builds on but is not constrained by its origins in the English common law.

II. Aboriginal Rights as Interests in Land: Aboriginal Title and Aboriginal Rights Relating to Resources on and of the Land

It is not correct to say that the Indians did not “own” the land but only roamed over the face of it and “used” it. The patterns of ownership and utilization that they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. Even if they didn’t subdivide and cultivate the land, they did recognize ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes. Even if they didn’t subject the forests to wholesale logging, they did establish ownership of tracts used for hunting, trapping and food gathering. Even if they didn’t sink mine shafts into the mountains, they did own peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every part of the province was formerly within the owned and recognized territory of one or other of the Indian tribes.^[13]

The 1973 decision of the Supreme Court of Canada in Calder v Attorney General of British Columbia held that Aboriginal rights, including rights in relation to land, survived European settlement and sovereignty, remaining valid unless those rights had been extinguished by treaty agreement or otherwise.^[14] The “theory” reconciling the continuing existence of Aboriginal land rights with the assertion of Crown ownership is that, at the time of “sovereignty” (when British Sovereignty was asserted over land now comprising part of Canada) the Crown acquired “radical” or underlying title that was “burdened” by the pre-existing legal rights of Aboriginal people based on their use and occupation of the land prior to European arrival.^[15] When the Constitution Act (including the Canadian Charter of Rights and Freedoms)^[16] became law in 1982, Aboriginal rights that had not been extinguished to that date received constitutional protection under s. 35 of the Charter; in R. v Sparrow^[17] the Supreme Court of Canada held that the Government of Canada has a fiduciary duty, owed to First Nations, with respect to those rights. Constitutional protection does not mean that Aboriginal rights can never be infringed by legislation (all rights guaranteed by the Charter may be limited in accordance with section 1),^[18] but limiting Aboriginal rights will be justified only where the legislation in question furthers a “compelling and substantial” purpose, taking into account the “priority” given to Aboriginal interests by reason of the Crown’s fiduciary duty.^[19] Prior to constitutional protection, Aboriginal rights could be “impaired, diminished or extinguished by a valid exercise of governmental power” and an Aboriginal right extinguished prior to 1982 (requiring whether a clear and plain intention to do so in the instrument said to have had that effect) was not revived by the constitutional legislation.

Aboriginal rights are diverse in nature and, in relation to land, fall along a spectrum in terms of their degree of connection to a particular piece of land. At one end of that spectrum are practices, customs and traditions where the use of a particular piece of land is incidental to the activity in question; Aboriginal title, at the opposite end of the spectrum, connotes the deepest and most complete interest in land; and site-specific activities (activities intimately related to a particular piece of land) lie somewhere in the middle (with their exact location depending on the particular nature of the right in question).^[20] Only Aboriginal title and Aboriginal activities intimately related to a particular piece of land, including Aboriginal rights relating to resources in or of the land, may be treated as interests capable of founding a claim in nuisance.

A. Aboriginal Title

The nature of Aboriginal title was considered by the Supreme Court of Canada in Tsilhqot’in Nation v British Columbia (the court declaring the plaintiff First Nation to have established Aboriginal title in that case).^[21] Giving the judgment for the court, Chief Justice McLachlin referred to the Supreme Court’s earlier summarization of the content of Aboriginal title in Delgamuukw v British Columbia.^[22]

Positively, Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those [A]boriginal practices, customs and traditions which are integral to distinctive to [A]boriginal cultures" (para. 117). Negatively, the “protected uses must not be irreconcilable with the nature of the group’s attachment to that land” (ibid.)- that is, it is group title and cannot be alienated in a way that deprives future generations of the control and benefit of the land.^[23]

The test for establishing Aboriginal title was set out in Delgamuukw as requiring the following elements to be established: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.^[24] In situations involving development of land over which Aboriginal title is claimed but not yet proven, the government has a duty to consult with the affected First Nation in proportion to a preliminary assessment of the strength of the claim, and the impact of any proposed development on the rights asserted.^[25]

The specific issue arising in Tsilhqot’in Nation was how the elements in the Delgamuukw test should be applied with respect to peoples who were semi-nomadic (as many First Nations were, moving between sites in accordance with seasonal and other developments impacting the land). To require intense site specific use of land to establish title would impose European land use practices (and the legal categories constructed on the basis of those practices) onto First Nations, “forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.” ^[26] Practically, this approach would result in “small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping.”^[27]

Proving “sufficient occupation” must therefore take into account both the Aboriginal and the common law perspective, interpreting the common law concepts of possession and control in relation to a particular First Nation’s way of life; a “strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.”^[28] The First Nation “might conceive of possession of land in a somewhat different manner than did the common law” (the latter requiring an intention to hold or occupy land for its own purposes);^[29] this should not be at all surprising, given the differences between these cultures and their ways of life. Showing continuity of occupation simply required that “present occupation be rooted in pre-sovereignty times”; establishing exclusivity (as with occupation), must include a consideration of the perspective, laws and practices of the particular First Nation together with the perspective of the common law. A consideration of the First Nation’s perspective, for example, “may… lead to the conclusion that trespass by other [A]boriginal groups does not undermine, and that presence of those groups by permission may reinforce, the exclusive occupation of the [A]boriginal group asserting title…. the [A]boriginal group asserting the claim to [A]boriginal title may have trespass laws which are proof of exclusive occupation, such that the presence of trespassers does not count as evidence against exclusivity.”^[30]

B. Aboriginal Rights Relating to Resources on or of the Land

The proprietary-like qualities of Aboriginal title, as a particular species of Aboriginal right, are relatively easy to see through common law eyes. Customs and practices that are accorded the status of Aboriginal rights relating to resources on or of the land (occupying the middle point on the spectrum described above) are less familiar. A practice will acquire the status of an Aboriginal right only where it is integral to the distinctive culture of the First Nation society in question^[31]; an Aboriginal right relating to resources on or of the land must therefore be both integral in this cultural sense and intimately connected to the land in question, adding another, thicker dimension to the right. This quality distinguishes Aboriginal rights relating to resources on or of the land from their closest (and relatively thinner) common law relative the profit a prendre or “right to take something off the land of another person”.^[32] It also means that not all practices or uses in existence at the time British sovereignty was introduced in Canda will necessarily be regarded as Aboriginal rights (not all practices being integral to the distinctive culture of the society concerned).

Aboriginal rights of this kind (an Aboriginal right to hunt e.g.) are not frozen in time, and modernised forms of Aboriginal rights will not lose their protected status. Nor is it necessary to show that a use or activity has been exercised since time immemorial; all that is required is for the evidence to show that the use or activity had been in effect for a sufficient length of time to become culturally integral to the society.^[33] Like Aboriginal title, Aboriginal rights are held collectively by the particular First Nations community to which they belong “in keeping with the culture and existence of that group,”^[34] with each member of that community having a personal right to exercise those rights.^[35] Once established, and unless extinguished prior to 1982 (when the Charter came into effect), Aboriginal rights of any kind will be protected by the Canadian Charter of Rights and Freedoms. It is crucial to note that Aboriginal rights were not created by the Charter, predating not only the Charter but British Sovereignty and the nation of Canada itself.

III. Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc.

The plaintiffs in this case brought their action in nuisance against the defendant Rio Tinto Alcan in 2011; the final decision of the British Columbia Court of Appeal was given in 2024. Understanding the legal history of the case, in addition to the factual background (as in all nuisance cases), is essential to understanding its meaning and significance. The 2022 decision of the Supreme Court of British Columbia in itself was six hundred and eleven paragraphs long and included numerous appendices; what follows is a brief summary of the most salient points in that legal history and factual background as they relate to the nuisance claim.

A. Background and Case History

In 1950, the province of British Columbia authorised a private company, Rio Tinto Alcan (RTA) to build and operate a dam and related works (the Kenney Dam) on the Nechako River in Northern British Columbia for the purpose of supplying hydroelectric power to an aluminum smelter in the area and to Northern British Columbia more generally. At the same time, the government granted RTA a conditional water licence authorizing it to release water held back by the dam away from the Nechako River (contrary to the usual practice of releasing water held back into its source) and into a tunnel leading to a generating station, ultimately flowing out to the ocean through the Kemano River. A small amount of water was periodically released into the Cheslatta River, flowing downstream for 80 kilometres before eventually emptying into the Nechako. As a result of these diversions and changes to the water flow, the river’s bed and banks were significantly changed, and fish populations diminished (the Nechako sturgeon now being almost extinct). These impacts (together with the availability of measures that would diminish them) had been known and understood by RTA, and by the provincial and federal governments, for decades.

In 1980, the Federal Minister of Fisheries and Oceans, responding to concerns about the impact of the dam and related works on the Nechako River fisheries, entered into discussions with RTA about releasing more water from the reservoir into the river (the province, claiming ownership of the waterflow, also became involved). A Settlement was agreed upon including a “Short Term Water Flow Allocation” (as agreed upon by a “Technical Committee” established in the Settlement Agreement) pending a “Long Term Water Flow Allocation”. The Short Term Water Flow Allocation agreement called for RTA to build a new Water Release Facility (to release water into the Nechako) but there was no binding obligation to do so and the facility was never built.

In 1997, RTA and the province of British Columbia entered into an agreement that included a final water licence which, like the conditional water license before it, authorised RTA to store, divert, and use water from the Nechako in connection with the Kenny Dam and its works (permitting the continued diversion of water away from the Nechako). The province subsequently entered into an agreement with RTA to purchase excess hydroelectric power generated by the Kenny Dam works.^[36]

The plaintiffs (Jackie Thomas on her own behalf and on behalf of the Saik’uz First Nation and Reginald Louis on his own behalf and on behalf of the Stellat’en First Nation) brought an action against RTA in 2011, alleging that RTA’s diversion and regulation of the stream flow had profoundly impacted the fisheries on the river, including spawning grounds, and substantially reduced Sockeye and Chinook salmon and Nechako sturgeon populations.^[37] The plaintiffs sought an injunction that would require RTA to release water from the reservoir to protect the fish in the Nechako River on the basis of private and public nuisance, and as a breach of their riparian rights.

The plaintiffs’ claim in private nuisance was based on RTA’s interference with their rights to use and enjoyment of land in which they held two distinct interests: Aboriginal title (including over the riverbed) and an Aboriginal right to fish. Those rights had yet to be proven in court at the time the plaintiffs brought their action but, the plaintiffs argued, the requirement of a separate trial to establish those rights would impose a barrier that other nuisance plaintiffs did not have to meet. Both rights could be proven at trial in connection with the broader nuisance inquiry. The damage arising from the defendant’s unreasonable interference with the plaintiffs’ use and enjoyment of their land included, the plaintiffs alleged, loss of use and enjoyment of the Nechako Lands, the Nechako Fisheries, the Tributary Fisheries and the Reserves; interference with the Plaintiffs’ ability to exploit fisheries resources in the affected area; loss of value of the Nechako and Tributary Fisheries; erosion and loss of value of the riverbanks and adjacent Nechako Lands; loss of value of reserve lands; and negative cultural impacts associated with the above.

Although the common law concept of riparian rights had long been extinguished in British Columbia by the provincial Water Act, which vested “the property in and the right to the use and flow of all the water at any time in a stream in British Columbia…for all purposes” in the government with the exception of private rights established under licences or approvals granted in accordance with the legislation,^[38] the plaintiffs’ asserted that these provisions did not apply to riparian rights attached to reserve land (in which they had a special interest) or to riparian rights arising by virtue of their claimed Aboriginal title in the Nechako riverbed. The plaintiffs agued that the riverbed title was a distinct source of riparian rights that could not have been extinguished by the provincial legislation. The public nuisance claim alleging “special and particular” harm to the plaintiffs (including harm to the plaintiff’s Aboriginal rights), as an alternative or “fallback” in the event the claim for private nuisance failed,^[39] was not developed or ultimately pursued.

In 2013 RTA brought what the court described as a “hybrid action” to strike the claim as showing no cause of action and for summary judgment on the basis of the defence of statutory authority. The request for summary judgment was declined (on the basis that consideration of factual evidence at trial was required to determine the application of statutory authority) but the Court granted the defendant’s request to strike the claim, finding that all three claims (private and public nuisance and interference with riparian rights) had no reasonable chance of succeeding. The claims could not proceed, the Court concluded, until the Aboriginal rights in question had been proven.^[40] With respect to riparian rights on reserve lands, the Court held that the Water Act extinguished riparian rights in British Columbia prior to the transfer of land from the province to the federal government for the purpose of creating the reserve.

The plaintiffs successfully appealed the decision to grant the application to strike,^[41] the Court of Appeal holding that, assuming that the Aboriginal rights alleged in the notice of civil claim were proven, a reasonable cause of action on the basis of private and public nuisance and interference with riparian rights arising from Aboriginal title had been disclosed. If true, the plaintiffs’ assertion that they exclusively occupied portions of the Central Carrier territory (including the Nechako River and lands along its banks) at the time of British sovereignty in British Columbia (1846) would give them Aboriginal title to those lands and, therefore, a right of possession that was sufficient to bring an action in nuisance and interference with riparian rights. The Aboriginal right to fish (having been “likened to a profit a prendre”) would also be sufficient to support a claim in private nuisance and in public nuisance (as a a basis for special damage).^[42] The Court of Appeal agreed with the plaintiffs that striking their claims on the basis that their Aboriginal rights had yet to be established in court would “create a unique pre-requisite to the enforcement [emphasis added] of Aboriginal title and other Aboriginal rights”.

Under this approach, these rights could only be enforced by an action if, prior to the commencement of the action, they have been declared by a court of competent jurisdiction or are accepted by the Crown. In my view, that would be justifiable only if Aboriginal title and other Aboriginal rights do not exist until they are so declared or recognized. However, the law is clear that they do exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.^[43]

Following this decision, RTA applied to have both the provincial and federal government added as defendants to the litigation. Both governments consented, and the Notice of Civil Claim was amended to include Canada’s failure to meet its obligation to protect the fishery from acts and authorisations within its control and to ensure the water flows were adequate to protect the plaintiff’s rights; a failure by the province to act in good faith by reducing the impacts of the Kenny Dam water diversion; and a general failure on the part of both governments “in exercising their discretionary control over the water flows resulting from the diversion” and “to act on their fiduciary and other obligations to the plaintiffs as Aboriginal peoples.”^[44]

B. Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc.: 2022 Trial Decision

At trial, all of the defendants accepted the existence of the plaintiff First Nations’ Aboriginal right to fish, a right that was intimately connected with the Nechako River and its tributary system. They denied that this right could ground a claim in private nuisance, however, and asserted that the damage to the fisheries (in particular the Sockeye and Sturgeon) was not as “bleak” as the plaintiffs had suggested.

Justice Kent disagreed with both contentions. In relation to the plaintiffs’ claim based on Aboriginal title, however, Justice Kent found that Aboriginal title could not be established on the evidence before him (although if Aboriginal title were proven it would have given the plaintiffs standing in nuisance). At least eight neighbouring First Nations had “overlapping claims” for rights and title covering almost the entire territory. Thus,it would be “advisable” for those other nations to be involved in resolving this question (taking into account the possible of “joint exclusivity” where “two or more nations on a particular piece of land [recognised] each other’s entitlement to that land but nobody else’s”).^[45] Without their participation, there was “no full evidentiary basis to properly determine exclusivity between overlapping claimants” making it “possible that a ‘finding of title’ in favour of the claimants would irrevocably and unfairly disentitle another Indigenous group that may have a stronger claim.”^[46] Justice Kent nevertheless went on to make findings of fact “which may permit the determination of the issue by the appeal courts if they are so inclined” excluding the claims related to portions of the Nechako Rover, Stellako River and Fraser Lake where the conflict between Aboriginal title exclusivity and the public right of navigation (in addition to particularly “acute” overlapping claims) made findings of fact impossible. If Aboriginal title were to be established in these areas riparian rights “as a sui generis aspect of Aboriginal title” would not have been extinguished by the provincial Water Act (as provincial law cannot extinguish Aboriginal rights).^[47] Justice Kent made it “clear… that [he was] not dismissing the plaintiff’s alternative claim for waterbed title on the merits… but simply deferring determination of that issue to a case where the question can be decided on a more complete evidentiary record.”^[48]

The plaintiffs had, however, established their Aboriginal right to fish, both as a right integral to their culture and as a right that was intimately connected to the land in question. “Ŵhether the conventional nomenclature of nuisance law (such as “proprietary interests”) was technically descriptive” of that right did not determine the whether the plaintiffs could bring a claim in nuisance “against a defendant whose use of land unreasonably interferes with those rights.”^[49]

[A]part from any characterisation of Aboriginal rights as usufructory or by comparison to a profit a prendre, the suit generis nature of Aboriginal rights, the important purpose they serve (reconciliation and provision of cultural security and continuity) and the fact that they are intimately related to a piece of land means that a claim in nuisance must be sustainable in law where there is an unreasonable interference with the right itself or the land to which the right is intimately related. If an extension of the common law is necessary to achieve that, this is an appropriate case in which to do so.^[50]

As the plaintiffs had established that the damage to the fish populations in the river had been caused by the actions of RTA in their operation of the Kenney Dam works, their claim in private nuisance was made out. The First Nations witnesses giving testimony in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc. described how the “fish had disappeared, fishing for year-long sustenance [was] no longer possible, buying fish at the store [was] too expensive, and many of the children are no longer even being taught to fish.” ^[51] The fish themselves were described not as sources of profit but as respected beings of high cultural value (especially the sturgeon who, in previous times, grew to great age) “All of this”, Justice Kent concluded, “is yet another invidious challenge to Indigenous cultural security and continuity that justifies any necessary extension to the common law.”^[52] Justice Kent further found that the plaintiff’s interest in and occupancy of their reserve lands (a tract of land set apart by the Crown for the use and enjoyment of the First Nation, including a right of exclusive possession) was sufficient to found an action in nuisance arising from an interference with their use and enjoyment of those lands.^[53]

Unfortunately for the plaintiffs, however, Justice Kent found that the defence of statutory authority was applicable in these circumstances. RTA had always operated within the parameters of its authorisation, and both the province and the federal Department of Fisheries and Oceans, despite knowledge of the negative impacts on the river and its fish, had ultimately approved the substantial water diversions caused by the dam and its works (diversions authorised under the Water License). The agreement contained in the Water License to set up a Technical Committee (with representation from both levels of government, an independent expert, and the RTA) gave that body responsibility for regulating the water flow. “If those directions [of the Technical Committee] are insufficient to protect the fish and the fishery… [which Justice Kent found was the case] it is not because RTA has been non-compliant with its statutory authorisations”^;[54] it was the responsibility of the government bodies involved to determine the availability of practically feasible alternatives that would cause less harm to the river and its fish, not RTA. Those government bodies were and “still are responsible for determining the level of protection required for the fish in the watershed as a result of the installation and operation of the dam.”^[55] The plaintiff’s argument that the defence of statutory authority was “constitutionally inapplicable” in this case (due to the Government’s failure to consult with the affected First Nations regarding the water diversion and flow before granting the authorisations to RTA) was unsuccessful; “the Crown alone remains responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests.”^[56]

Regarding the claim against the Crown, once the Aboriginal right to fish had been found it followed that the Crown, at both the provincial and federal levels, had an obligation to protect that right “by taking all appropriate steps to protect the fish and to act honourably while doing so.”^[57] The question now was whether the ongoing harm to the fisheries required the Crown to take action to increase the water flow into the river, action which may require modifications to its agreement with RTA. The Court could not make a mandatory injunction to that effect, but could make a declaration as to the plaintiff’s rights, which it did in the following terms:

1. The plaintiffs have an Aboriginal right, as claimed, to fish for food, social and ceremonial purposes in the Nechako River watershed; and,

2. As an incident of the honour of the Crown, both the federal and the provincial governments have an obligation to protect that Aboriginal right.^[58]

C. Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc.: 2024 Court of Appeal Decision

The plaintiffs appealed the Court’s decision regarding the defence of statutory authority; the defendants submitted that it was unnecessary to decide that issue because the plaintiffs’ Aboriginal right to fish could not found an action in nuisance (and if it could, that the plaintiffs had not established causation). The plaintiffs also asserted that the declaration provided was too narrow, being of no practical use in terms of protecting the plaintiffs’ Aboriginal rights. On the issue of the defence of statutory authority, the plaintiffs were unsuccessful. The Court of Appeal varied the declaration (agreeing with the plaintiffs that it was unnecessarily narrow) to state that the federal and provincial governments have a fiduciary duty to protect the plaintiffs’ right to fish that included an obligation to consult with them about any future decisions relating to the flow and diversion of the Nechako (pursuant to RTAs authorisations and water licence).

On the question of whether the plaintiffs had standing in nuisance of the basis of their Aboriginal right to fish, the defendants argued that Justice Kent had “impermissibly expanded the scope of the tort”. ^[59] The defendants argued that the right was not sufficiently similar to existing proprietary rights to bring it within the traditional categories, RTA contending further that Aboriginal rights were constitutional rights and as such not actionable against a private entity such as itself.^[60] The Court rejected these arguments, describing nuisance as “one of those areas of the law where the courts have long been engaged in the application of certain basic legal concepts to a never-ending variety of circumstances” (and thus the “dearth of similar cases present[ed] no great obstacle”).^[61] Requiring a traditional proprietary interest in this case would be “overly restrictive”^[62] and contrary to the emphasis given in the Supreme Court of Canada to the nature of Aboriginal rights as sui generis. “Even if his conclusions regarding standing were considered to be an extension of the common law”, the Court concluded, "we nonetheless agree with [Justice Kent] that [such an extension] was appropriate because it: (a) will not result in indeterminate liability; (b) protects unique constitutional rights; and (c) is justified by the need to prevent “yet another … challenge to at cultural security and continuity.”^[63] On the facts of this case, however, the Court concluded that the plaintiffs’ Aboriginal right to fish was connected to their underlying interest in reserve land. Thus, it was unnecessary to determine whether the nature of the plaintiffs’ right to fish in this particular case would be sufficient without that connection as “any analysis would necessarily be contextual and grounded on the evidentiary record in a given case.”^[64]

IV. Conclusion

If we understand nuisance as a tort against the land, including rights in the land, the incremental development of the categories of nuisance in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc. was entirely in keeping with developments in the Canadian law of property. Tort law does not exist in isolation and the recognition of certain Aboriginal rights as property rights in Canadian law compels the development of Canadian common law frameworks to accommodate those rights. To insist on limiting the interests in land capable of founding an action in nuisance to a finite list of proprietary interests brought into Canadian law from the common law of England, developed in a context where Aboriginal rights have never needed to be taken into account (as they do not exist in that context), ignores the reality of our country’s history and its present, as we work towards reconciliation. Meaningful reconciliation depends, in particular, on developing just and fair frameworks for living together on the land.

Nor does the mere fact that Canada’s constitution refers to and guarantees Aboriginal rights transform their nature from a right attached to (and therefore comprising part of) the land to a special “constitutional right” relevant only to the relationship between First Nations and the Crown. Aboriginal rights are not a creature of the Charter. Indeed, the constitutionally protected nature of Aboriginal rights may be regarded as adding to their weight in the reconciliation of competing land uses through the nuisance inquiry. In Canada today (as a consequence of our legal, economic, and social history) the sui generis property interests of First Nation co-exist on the land, side by side, with the proprietary interests of non-governmental third parties (such as Rio Tinto Alcan) and the Crown. In this context, there is no substantive rationale for keeping Aboriginal rights in land outside of existing common law frameworks. First Nations do not exist only in relationship to the governments; we are all neighbours.