Case information

Tort law — Nuisance — Defence of statutory authority — Constitutional law — Constitutional inapplicability — Hydro-electric dam and works constructed and operated by Rio Tinto Alcan Inc. pursuant to statutory, regulatory and licencing authority impacting two First Nations’ Aboriginal rights to fish — First Nations establishing claim in nuisance — How should the inevitable result test within the defence of statutory authority apply to Crown authorizations that include mechanisms that could avoid the nuisance that interferes with an Aboriginal right — Does the Constitution apply to limit the lawful scope of Crown authorizations to activities that do not unjustifiably infringe an established Aboriginal right — What is the role of constitutional principles and the United Nations Declaration on the Rights of Indigenous Peoples in applying the defence of statutory authority in a tort claim involving rights protected under s. 35(1) of the Constitution Act, 1982?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the 1950s, British Columbia entered into an agreement with Rio Tinto Alcan Inc. to build the Kenney Dam on the Nechako River. Since then, British Columbia has continuously issued the rights, licenses and permits for Rio Tinto Alcan Inc. to operate the dam. The affected watershed lies within the traditional territories of the Saik’uz First Nation and the Stellat’en First Nation. The construction and operation of the works has caused declines in fish populations. The two First Nations brought a claim in nuisance asserting infringement of their Aboriginal right to fish in their traditional territories. Rio Tinto Alcan Inc. raised a defence of statutory authority. The trial judge found both the claim of nuisance and the defence of statutory authority were established. The trial judge granted declaratory relief against the governments of Canada and British Columbia. The Court of Appeal allowed an appeal in part and amended the declaratory relief.