| Check out the latest post by Kate Gunn in our “In Brief” series featuring a concise summary and opinion on the recent BC Court of Appeal decision. I hope you find it informative and helpful. You can also read it on our website. Best, Bruce In Brief: Thomas v. Rio Tinto Alcan Inc., 2024 BCCA 62 What it’s about The BC Court of Appeal held that Canada and BC have a fiduciary duty to protect the Saik’uz and Stellat’en First Nations’ Aboriginal right to fish on the Nechako River, including by ensuring the water allocation and flow regime is managed in a manner consistent with the Crown’s obligations under section 35 of the Constitution. What happened The Saik’uz and Stellat’en First Nations brought a claim in nuisance against Rio Tinto Alcan Ltd. on the basis that construction and operation of the Kenney Dam infringed their Aboriginal right to fish on the Nechako River. At trial, the BC Supreme Court held Rio Tinto was not liable for private nuisance because it had complied with all regulatory requirements associated with the dam. The Court also issued a declaration stating the Crown had a positive obligation to protect the First Nations’ Aboriginal right to fish. On appeal, the BC Court of Appeal upheld the lower court’s decision dismissing the nuisance claim against Rio Tinto. However, the Court went on to find the lower court’s declaration was insufficient given the significant, ongoing impacts of the hydroelectric project on the First Nations’ established fishing right. The Court varied the declaration to confirm that the federal and provincial governments have a fiduciary duty to protect the First Nations’ right to fish, including by consulting the First Nations about decisions regarding the management and flow regime for the Nechako River pursuant to the company’s licences and authorizations. The Court further held that in circumstances involving the rights and interests of Indigenous Peoples, courts can, and should, consider issuing specific declarations aimed at ensuring the Crown’s future actions are consistent with its obligations under section 35.  Photo credit: KirinX (License)Why it’s important Declarations – court judgments which clarify the legal rights and obligations of the parties, but do not require either party to take any specific action – are often criticized as an inadequate remedy to advance reconciliation. Despite this, courts frequently issue declarations in decisions involving Aboriginal and Treaty rights, including in circumstances where other remedies are unavailable as a result of statutory limitation periods. Declaratory relief should not be used as a substitute for enforceable judicial remedies to redress wrongs against Indigenous Peoples. In the context of Canada’s colonial history, First Nations must have access to effective remedies, including compensation and damages, for past breaches of the Crown’s obligations. At the same time, the Court of Appeal’s “declarations plus” approach opens the door for a renewed, strengthened approach to declaratory relief by providing clear, specific direction on how the Crown is to give effect to its constitutional and fiduciary obligations. If adopted, this approach could provide a powerful tool to guide and shape future Crown conduct, particularly in the context of projects which have serious, ongoing impacts on Indigenous Peoples’ rights and interests. |
| Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master of Law at the University of British Columbia. Kate is co-author of Indigenous Peoples and the Law in Canada: Case Commentary.Contact Kate and connect with her on LinkedIn and TwitterFirst Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations. Chat with usFor more First Peoples Law analysis, visit our blog Sign up for our First Peoples Law Report |