[1]         This appeal involves a claim for common law nuisance based on interference with Aboriginal fishing rights. It presents issues about how the defence of statutory authority applies to a nuisance claim, including whether the Constitution Act, 1982, may limit the availability of the defence in certain circumstances. It also raises questions about the availability and nature of declaratory relief against the federal and provincial governments where a nuisance is found to have ongoing impact on an established right.

[2]         In the 1950s, the province of British Columbia (“British Columbia”) authorized the respondent Rio Tinto Alcan (“RTA”) to build the Kenney Dam (“Kenney Dam”) to facilitate the production of hydropower for the smelting of aluminum. Water is stored, diverted for use, and released from the resulting 233-kilometre long reservoir in a manner that impacts several waterways, including the Nechako River and Kemano River.

[3]         The construction and operation of the Kenney Dam and the reservoir has had a dramatic impact on the Nechako River. As a result, in September 2011, the appellants brought a claim in nuisance against RTA. In that claim, the two First Nations asserted an Aboriginal right to fish in the Nechako River watershed. They also asserted Aboriginal title to the lands and beds of the lakes or rivers in which they traditionally fished, although they did not seek a formal declaration to that effect.

[4]         In response, RTA relied on the defence of statutory authority, claiming that British Columbia explicitly and validly authorized the construction and operation of the Kenney Dam and reservoir. On that basis, RTA argued it should be shielded from any liability flowing from the inevitable consequences to the Nechako River and its fisheries.

[5]         Following RTA’s application in August 2016, the federal government (“Canada”) and British Columbia were added as defendants to the claim.

[6]         As part of the relief sought, the appellants asked for an injunction to compel RTA, Canada, and British Columbia, to restore a more natural hydrograph in the Nechako River, with a view to preventing further damage to the fishery and restoring the historic abundance of the Nechako White Sturgeon and salmon.

[7]         At trial, the evidentiary record from the parties was voluminous, including a 100-page Agreed Statement of Facts (“ASF”) that was accepted by the trial judge. There were over 3,000 pages of final written submissions. Following the 189-day trial, the trial judge issued reasons for judgment, totaling over 220 pages (indexed at 2022 BCSC 15; referred to throughout as “RFJ”).

[8]         The appellants’ lawsuit against RTA was based on the common law tort of nuisance and grounded in their assertions of an Aboriginal right to fish in the Nechako River watershed and Aboriginal title to the lands and beds of the lakes or rivers in which they traditionally fished. Although the appellants advanced an alternative claim in public nuisance, the trial judge decided the case on the basis of the legal framework that applies to private nuisance.

[9]         The trial judge held that the two First Nations have a constitutionally entrenched Aboriginal right to fish the Nechako River watershed for food, social, and ceremonial purposes, but this right had been significantly impaired due to the regulation of the river and the decline of the fish population.

[10]      As a matter of law, the trial judge found that the appellants’ interest in and occupancy of certain reserves were sufficient to found an action against RTA in private nuisance arising from any substantial and unreasonable interference with their use or enjoyment of the reserve lands. In addition, he found that the appellants’ Aboriginal right to fish was also sufficient to found an action in nuisance in the appropriate circumstances.

[11]      Overall, the trial judge accepted that RTA’s regulation of the Nechako River watershed had negative effects on the abundance and health of the fish population in the watershed and that the resulting decline in the fish population and fishery had “hugely negative impacts” on the appellants as Indigenous communities. This impact was greatly disproportionate to any burden placed on the non-Indigenous population of the region. Specifically, he found that the regulation had caused or materially contributed to the decline in the Nechako White Sturgeon and salmon. In those circumstances, RTA would be liable in private nuisance, unless it was immunized by defences based on statutory authority or limitations legislation.

[12]      The trial judge found the defence of statutory authority applied in this case and RTA could not be held liable in nuisance. RTA had complied with the regulatory requirements imposed by British Columbia in installing and operating the Kenney Dam and its reservoir. Any harm resulting to the fish and fishery in the Nechako River was considered the “inevitable result” of the regulatory requirements. The appellants were unsuccessful at trial in advancing the argument that the defence was “constitutionally inapplicable” on the basis that the conduct infringed Aboriginal rights. Accordingly, the claims against RTA were dismissed (RFJ at paras. 542–543, 603).

[13]      The trial judge declined to make any formal findings on Aboriginal title to the appellants’ claimed traditional fishing sites and to the submerged lands and waters of the Nechako River, Stellako River or Fraser Lake. He also declined to make any findings of Aboriginal rights comparable to the common law riparian rights available in or before the 19th century.

[14]      The trial judge was prepared, however, to make a declaration that the appellants have an Aboriginal right to fish for food, social, and ceremonial purposes in the Nechako River watershed and that the provincial and federal governments have an obligation to protect that right. He granted this remedy against Canada and British Columbia, declaring that each of them has an ongoing duty to protect the appellants’ Aboriginal right to fish.

[15]      On appeal, the appellants challenge the trial judge’s conclusion that the defence of statutory authority applied and, if it did apply, they say he erred in failing to find that the defence was constitutionally inapplicable. The appellants also submit the trial judge erred in failing to make a finding of Aboriginal title on their behalf, and further erred in granting limited declaratory relief.

[16]      In seeking to uphold dismissal of the nuisance claim, RTA challenges the trial judge’s findings that the appellants’ Aboriginal right to fish was sufficient to ground a claim in private nuisance, that they established the necessary element of causation, and that the claims concerning the White Sturgeon were not statute-barred. If nuisance has been established, RTA relies on the trial judge’s conclusion that the defence of statutory authority applies.

[17]      For the reasons that follow, the appellants have not established that the trial judge erred in dismissing the common law nuisance claim against RTA or in declining to make a finding of Aboriginal title. However, we have concluded the trial judge did err in principle in resolving the claim for declaratory relief. As this error was material, we allow the appeal for the sole purpose of varying the declaratory relief granted by the trial judge.

[18]      The Industrial Development Act, S.B.C. 1949, c. 31 (“IDA”) gave the authority to the Lieutenant Governor-in-Council to sell Crown land, grant a water licence to any person who proposed to establish an aluminum industry in the province, and to make other arrangements for the operations of the aluminum industry in British Columbia. The IDA also authorized British Columbia to execute formal contracts to accomplish these purposes (RFJ at para. 71).

[19]      Section 3 of the IDA stated:

[20]      Section 3(3) explicitly contemplated that the aluminum industry’s establishment and operation may result in fisheries being “injuriously affected”. It required that any formal agreement made by the government provide protection to such fisheries “as may be considered advisable”.

[21]      On December 29, 1950, British Columbia and RTA entered into an agreement (the “1950 Agreement”, authorized by Order in Council 2883/1950), which granted RTA the right, licence(s), and permit(s) under the Water Act, 1939, c. 63, to store, use by diversion, and occupy all Crown lands that were pertinent to developing and operating the water power. The infrastructure that the 1950 Agreement authorized subsequently became the Kenney Dam, Nechako Reservoir, and Skins Lake Spillway.

[22]      Pursuant to the IDA, a Conditional Water Licence (“CWL”) was appended to the 1950 Agreement. The CWL, issued to RTA by the Comptroller of Water Rights on behalf of the province, authorized RTA to store, divert, and use water from the Nechako and Nanika River watersheds and to construct, maintain and operate works for the generation and supply of power at Kemano as set out in the 1950 Agreement.

[23]      With respect to the quantity of water stored and diverted, the CWL stated:

[24]      The Provincial Minister of Lands and Forests also issued a permit under the Water Act, authorizing the occupation of Crown land covered by the Nechako Reservoir (RFJ at para. 74).

[25]      Neither the 1950 Agreement nor the CWL contained any provision for specific flows to be released into the Nechako River for any purpose, fisheries or otherwise. Under this CWL, RTA always had the option to release waters to the river voluntarily, subject to any legal requirements (RFJ at para. 75; ASF at paras. 81, 84(d)).

[26]      These authorizations were all provincial instruments and did not require the involvement of Canada. However, due to its concerns about the impact of the development on fish, the Department of Fisheries and Oceans (“DFO”) negotiated directly with RTA regarding specific release flows.

[27]      Eventually, an informal arrangement was reached for RTA to release flows from the Skins Lake Spillway (as Canada had requested) up to a rate of 100 cubic feet per second; Canada would not request releases at any higher amounts; and Canada would inform the provincial Comptroller of Water Rights of its approval of RTA’s construction plans. There was no requirement under the 1950 CWL for RTA to receive approval from the DFO prior to proceeding with construction of the Kenney Dam and diversion (RFJ at para. 83).

[28]      From 1950 to the end of the 1970s, RTA held the same authorization provided in the 1950 CWL to store and divert water. The arrangement between RTA and Canada with respect to the flows also remained the same until matters changed in 1980 (RFJ at para. 106).

[29]      Litigation in the 1980s among RTA, Canada, and British Columbia, eventually gave rise to the 1987 Settlement Agreement, which established the flow regime for the Nechako River that is in force today (RFJ at para. 529).

[30]      The 1987 Settlement Agreement specified RTA’s obligations to release water as well as the Short-Term Water Allocation and Long-Term Water Allocation governing RTA’s water release obligations that have been in place since then. Those allocations set out the quantity of water to be released from the Nechako Reservoir for each month of the year (RFJ at paras. 141–146).

[31]      On December 29, 1987, British Columbia issued an Amended CWL and an Amended Permit Authorizing the Occupation of Crown Land No. 3349 to RTA. The Amended CWL set out the following regarding storage, diversion, and releases:

[32]      The 1987 Settlement Agreement also led to the creation of a Technical Committee, which was charged with directing the flows to be released by RTA from the Nechako Reservoir through the Skins Lake Spillway. The Committee includes representatives from both levels of government, RTA, and an independent expert selected for technical expertise. Both levels of government are involved directly in setting the flow (RFJ at paras. 149–153, 531).

[33]      As well, the 1987 Settlement Agreement provided for the creation of the Nechako Fisheries Conservation Program (“NFCP”), which the Technical Committee was charged with implementing and was subject to oversight by a Steering Committee. That committee consisted of three members appointed separately by each of the parties to the 1987 Settlement Agreement. Decisions of the Steering Committee are to be unanimous; if there are disagreements, they may be determined by arbitration (RFJ at para. 149).

[34]      The Summer Temperature Management Program (“STMP”) was also mandated as part of this settlement agreement and incorporated into the Amended CWL. The objective of the STMP is to prevent mean daily water temperatures from exceeding 20^oC in the Nechako River during sockeye migration in July and August. The Technical Committee oversees RTA’s implementation of the STMP (ASF at paras. 474–476).

[35]      RTA brought an action against British Columbia that was settled by way of a 1997 Settlement Agreement. Pursuant to that agreement, British Columbia issued RTA its Final Water Licence (“FWL”) which provides for the same storage levels, but lowers the maximum rate of diversion:

[36]      The water licences issued to RTA explicitly authorized and continue to authorize the diversion of water from the Nechako River (RFJ at para. 530).

[37]      The issues raised on appeal primarily relate to the trial judge’s findings on the common law nuisance claim, the application of the defence of statutory authority, his refusal to make a finding of Aboriginal title, and the declaratory relief he issued against the governments.

[38]      More specifically, we identify the issues on appeal as follows:

[39]      At the outset, we wish to note that throughout these reasons, we use the term “Aboriginal” to refer to the rights and title at issue. We recognize that “Indigenous” is the more appropriate term. We intend no disrespect in our use of this terminology. Our reliance on the term “Aboriginal” is meant to reflect the wording in the earlier case law, the trial judge’s reasons, and the written submissions of the parties.

[40]      The principal issue on appeal is whether the trial judge erred in concluding that RTA was entitled to rely on the defence of statutory authority to defeat the claim of nuisance brought against them. RTA submits, however, that it is unnecessary to resolve that issue because the trial judge erred in concluding that RTA’s conduct amounted to actionable nuisance.

[41]      RTA argues that the appellants lacked standing to bring the action, that if they had standing, the necessary element of causation of loss had not been established, and that in any event, certain claims were statute-barred. Only if these arguments fail and nuisance is established is it necessary to address the defence of statutory authority.

[42]      Accordingly, we address the issues raised regarding the common law nuisance claim in the following order:

[43]      The issue before the trial judge was whether Aboriginal rights could, at law, found the appellants’ action in nuisance.

[44]      On appeal, the issue is whether the trial judge applied the correct legal test in his analysis of nuisance and the permissible scope of the tort, which resulted in his finding that Aboriginal fishing rights could give rise to a claim in the tort of nuisance. This is to be reviewed on a correctness standard (British Columbia (Minister of Public Safety) v. Latham, 2023 BCCA 104 at paras. 49–50, leave to appeal to SCC ref’d, 40693, 40703 (21 December 2023) [Latham]).

[45]      The essence of any nuisance claim involves the interference with property rights (RFJ at para. 345, citing Royal Anne Hotel Co. v. Ashcroft (Village) (1979), 95 D.L.R. (3d) 756 at para. 9, 1979 CanLII 2776 (B.C.C.A.) [Royal Anne]).

[46]      RTA and British Columbia objected to the appellants’ nuisance claims on a number of grounds. RTA argued that the appellants’ constitutionally protected rights are not actionable against a private entity such as RTA but only actionable against the Crown (RFJ at para. 350). RTA also challenged the position that Aboriginal rights confer a proprietary interest in land sufficient to ground a claim in nuisance. British Columbia’s position was that Aboriginal fishing rights do not have the required degree of exclusive possession, are not akin to an actionable profit à prendre, and do not bestow any sort of title to a fishery (at para. 351). Canada took no position on the issue as there was no nuisance claim against Canada.

[47]      The trial judge correctly set out the legal framework for nuisance (RFJ at paras. 345, 347).

[48]      He first considered whether Aboriginal rights are actionable against non-governmental entities. He observed that Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida] expressly affirmed the possibility of tort liability on the part of third parties based on the legal rights of Indigenous peoples.

[49]      The trial judge then considered whether sui generis Aboriginal interests could found an action in nuisance and noted that this Court in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, leave to appeal to SCC ref’d, 36480 (15 October 2015) [Saik’uz 2015] endorsed three separate bases on which the nuisance claim in this case might be founded; namely, (1) the appellants’ interest in their reserves, (2) their Aboriginal right to fish, and (3) their Aboriginal title (if established) (RFJ at para. 362).

[50]      RTA conceded that the appellants’ reserve interests can found a claim in nuisance. The trial judge had “no hesitation in concluding that, as a matter of law, the [appellants’] interests in and occupancy” of the two reserves in question was “sufficient to found an action in private nuisance arising from any substantial and unreasonable interference with their use or enjoyment of the reserve lands” (RFJ at para. 366). He reached the same conclusion, in obiter, with respect to Aboriginal title (at para. 367).

[51]      The judge then turned to the “more controversial” issue of whether the Aboriginal right to fish bestowed standing to sue in nuisance (RFJ at para. 368).

[52]      He declined to engage in the parts of the issue that constituted more of an academic debate, recognizing that R. v. Sparrow, [1990] 3 S.C.R. 1075, 1990 CanLII 104, shows that Aboriginal fishing rights are not easily analogized to other rights (RFJ at para. 375). He agreed with the submissions of the appellants, who argued that this was the appropriate case to extend the common law to recognize that a claim in nuisance must be sustainable when there is an unreasonable interference with the Aboriginal right itself or the land to which that right is intimately related (at para. 376).

[53]      He then concluded that the appellants’ Aboriginal right to fish was legally sufficient to found an action in private nuisance, regardless of whether that right was exercised in the waters within or adjacent to the reserve lands and whether or not they held title to those lands and waterbeds (RFJ at para. 377). He rejected the submissions from RTA and British Columbia which objected to developing the law in such a manner (at paras. 379–382).

[54]      Ultimately, he concluded that the appellants’ occupation of their reserve lands was sufficient to ground their nuisance claim, and, independently, that sui generis Aboriginal rights to fish could found an action in nuisance in the appropriate circumstances (RFJ at para. 383).

[55]      RTA submits that the trial judge erred in law by holding that Aboriginal rights can ground a private cause of action in nuisance. It argues that the judge “fundamentally changed the common law of tort and property” in holding that Aboriginal rights are actionable directly against third parties, rather than allowing for the reconciliation of those rights through negotiation, and if necessary, litigation against the Crown.

[56]      RTA says that the trial judge effectively created a novel “super tort” grounded in Aboriginal rights, one that is both newly actionable and able to pierce directly otherwise valid common law defences. Furthermore, the finding that an Aboriginal right to fish could be “broadly” actionable in private nuisance is contrary to the principle that, at its core, nuisance is a tort committed against the land itself rather than against any person. Relying on Watkins v. Olafson, [1989] 2 S.C.R. 750, 1989 CanLII 36 and R. v. Salituro, [1991] 3 S.C.R. 654, 1991 CanLII 17, RTA submits that the judge’s finding is contrary to the principle that extensions to the common law must follow relevant principles and be exercised with judicial restraint.

[57]      The appellants disagree with RTA’s argument that only a proprietary right can give rise to liability in nuisance, and that because the appellants neither own the fishery nor the fish, their Aboriginal right cannot ground a nuisance claim. They say that what is relevant is whether their interests are of the kind that the tort is designed to protect and that interests, short of ownership, can sustain a claim.

[58]      They submit that the tort provides broad protection against interference or disturbance in the exercise or enjoyment of a right that is inherently and intimately connected with land, an example being profits à prendre. They argue that their right to fish is a site-specific interest that encompasses “access to the fishery as well as preservation of the fish” (Pasco v. Canadian National Railway Co. [1986] 1 C.N.L.R. 35, 1985 CanLII 320 at para. 31 (B.C.S.C.)).

[59]      As a preliminary issue, RTA appears to argue that from a pleadings perspective, the appellants’ claims in private nuisance do not disclose an action known at law and were thus bound to and should have failed.

[60]      The difficulty with this argument is that it was specifically rejected in Saik’uz 2015. First of all, with respect to Aboriginal rights, Justice Tysoe, writing for the Court, concluded that the chambers judge had erred in holding that no reasonable causes of action existed until Aboriginal rights and title were proven or accepted. He stated that it was not plain and obvious that the notice of civil claim disclosed no reasonable cause of action with respect to the claims for private nuisance, public nuisance, and breach of riparian rights, to the extent they are based on Aboriginal title and rights (Saik’uz 2015 at para. 79).

[61]      Secondly, with respect to the claims based on the appellants’ interest in the reserve lands, Tysoe J.A. said it was not “plain and obvious” that they do not qualify as claimants in private nuisance under the narrower view that a plaintiff must have the right of exclusive possession to maintain an action in private nuisance (Saik’uz 2015 at para. 87). In reaching that conclusion, Tysoe J.A. pointed to s. 2 of the Indian Act, R.S.C. 1985, c. I-5, which defines “reserve” as “a tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band”. He said that this would “give the band the right to exclusive possession of the reserve lands, which is sufficient to found a claim in private nuisance” (at para. 88).

[62]      As we later explain, the effect of Saik’uz 2015 is limited on this appeal in that it only decided it was not plain and obvious that the appellants’ claims would fail. However, it is of assistance as we conduct our own review of the judge’s analysis and in light of his findings that were made on a full evidentiary record at trial.

[63]      At a minimum, since this Court found the claims were not bound to fail, the appellants’ claims should have been and were in fact considered by the trial judge in the context of the findings he made both with respect to the existence of the constitutional right to fish and their use of reserve lands.

[64]      The question then becomes whether the appellants’ claims in nuisance can be decided within the existing legal framework, or, as RTA asserts, were wrongly decided by the judge who impermissibly expanded the scope of the tort.

[65]      A “dearth” of similar cases presents “no great obstacle” to a claim, since “nuisance is 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…” (Fearn v. Board of Trustees of the Tate Gallery, [2023] UKSC 4 at para. 14, citing Bank of New Zealand v. Greenwood, [1984] 1 NZLR 525 at 530).

[66]      Accordingly, we agree with the trial judge that “whether the conventional nomenclature of nuisance law (such as ‘proprietary rights’) is technically descriptive of Aboriginal rights” cannot be determinative of whether those rights suffice to ground a claim (RFJ at paras. 376–377).

[67]      RTA submits that only a proprietary right can give rise to liability in nuisance, and because the appellants neither own the fishery nor the fish, their Aboriginal right cannot ground a nuisance claim.

[68]      We consider this approach overly restrictive and are of the view that a broader perspective is required. The judge explained that the “infrastructure of Aboriginal law” developed by the Supreme Court of Canada contained a number of features, including that Aboriginal rights are unique in nature (sui generis), and “do not necessarily coincide with traditional common law rules respecting property” (RFJ at para. 237).

[69]      Given that nuisance is a field of liability focused on the harm suffered rather than on the prohibited conduct, the analysis must consider whether the appellants’ constitutionally protected interests are those which the tort of nuisance is designed to protect.

[70]      The appellants correctly set out these points in their Reply Factum at paras. 73–74:

[71]      Furthermore, in Northern Cross (Yukon) Ltd. v. Yukon (Energy, Mines and Resources), 2021 YKCA 6, albeit in the context of considering whether an action was bound to fail, the Yukon Court of Appeal recognized that a nuisance may arise when interference with a profit à prendre prevents the plaintiff’s interest “from being used and enjoyed in a meaningful way” (at para. 101, citing 2021 YKSC 3 at paras. 206–207, leave to appeal to SCC ref’d, 40053 (4 August 2022)).

[72]      It is of assistance to summarize certain of the trial judge’s findings of fact to which the legal framework must be applied:

[73]      Specifically, in relation to Noonla Indian Reserve #6 and Stellaquo Indian Reserve #1 the judge found:

[74]      RTA challenges the trial judge’s finding that because Aboriginal rights are intimately connected to particular pieces of land, a claim in nuisance is sustainable whenever there is an unreasonable interference with that right. It argues that an “intimate connection” to land or site-specificity does not suffice to give rise to a claim in nuisance for interference with the fish.

[75]      For their part, the appellants submit the judge was correct, and they point to other courts and tribunals that have provided remedies for site-specific fishing rights in other contexts, despite the lack of a proprietary interest in the fish themselves. In Siska Indian Band v. Her Majesty the Queen in Right of Canada, 2021 SCTC 2, the First Nation was awarded compensation by Canada for impacts on their fishing rights because of damages to traditional fishing sites (at para. 216). Furthermore, in Ahousaht Indian Band and Nation v. Canada (Attorney General), 2021 BCCA 155 [Ahousaht], this Court expressly left open the possibility that compensation could be ordered for unjustified infringement of the Aboriginal fishing rights at issue in that case, with no proprietary interest in the fish themselves being seen to be a pre-requisite in either situation (at para. 299).

[76]      We agree that it was not necessary for the trial judge to enter “the academic debate”, but rather to focus on the fact that Sparrow and other authorities recognize that Aboriginal fishing rights are “not easily analogized to other rights” (RFJ at para. 375).

[77]      We agree with the judge when he accepted the appellants’ submission that the sui generis nature of Aboriginal rights, their importance to reconciliation and providing cultural security and continuity, and the fact that Aboriginal rights are intimately related to a particular piece of land were sufficient to sustain a claim in nuisance (RFJ at paras. 376–377).

[78]      In particular, we consider that the parameters of the current framework of the law of nuisance as discussed in Latham at paras. 33–50, are sufficiently broad to encompass the Aboriginal fishing rights specifically advanced and found to exist in this case.

[79]      That is because the appellants’ constitutionally protected right to fish for food, social and ceremonial purposes in their respective areas of the Nechako watershed was found to include the right to harvest resources that are associated with or adjacent to their reserve lands, to which they have exclusive occupation. In the circumstances of this case, it bears emphasizing that the right to fish is being exercised by members of Indigenous groups at a traditional fishing site adjacent to their reserves and involves:

[80]      Considered in this historical and cultural context and within the expanding recognition of the need for reconciliation, and cultural security and continuity for Indigenous peoples, we do not accept the distinctions that RTA raises to contest the appellants’ standing.

[81]      RTA also suggests that the trial decision expands the boundaries of the tort to the point where a “super tort” has been created where “large swathes of Canadian society [are made] potential trespassers and nuisance makers”, resulting in a change which risks “upsetting complex, multi-faceted resource management decisions”.

[82]      RTA raised this same argument at trial, but the trial judge rejected the submission as “simply hyperbole”. In rejecting this argument, he made two key points: (1) frivolous or unmeritorious claims would be deterred because causation of harm is difficult to prove, its litigation can be lengthy and expensive, and there are powerful defences available to respond; and (2) any incremental extension of the common law in those cases would only apply to Aboriginal claimants because it was only the unique, sui generis rights being recognized and protected (RFJ at paras. 378–380).

[83]      We agree with this reasoning. Furthermore, what is at issue in this case is what the appellants allege to be an extreme and singular interference with their fishing rights that they had tried to have addressed for decades. The trial judge was correct to find that in the circumstances of this case, his findings of fact considered within the applicable legal framework led to the conclusion that the appellants had sufficient standing to advance a claim in private nuisance against RTA.

[84]      We do wish to comment, however, on what the trial judge stated at para. 377:

[85]      In the circumstances of this case, the judge found there was a connection between the Aboriginal right to fish and the reserve lands and waterbeds in question. Given this finding, whether the judge correctly held that a s. 35 Aboriginal right can ground a claim in nuisance of and by itself, without any connection to land, even in the broadest sense, does not need to be decided. This is because any analysis would necessarily be contextual and grounded on the evidentiary record in a given case.

[86]      With this caveat, given the trial judge’s factual findings, even if his conclusions regarding standing were considered to be an extension of the common law, we nonetheless agree with him that it was appropriate because this “incremental extension”: (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 Indigenous cultural security and continuity” (RFJ at paras. 378, 380–381).

[87]      Accordingly, we would not interfere with the judge’s conclusion that the appellants had standing to bring their nuisance claim.

[88]      We now turn to RTA’s claims that there are palpable and overriding errors of mixed fact and law in the trial judge’s conclusions that RTA interfered with the appellants’ Aboriginal right to fish by: (1) causing or contributing to pre-spawn mortality in sockeye salmon, and (2) causing “fresh damage” to the White Sturgeon within the limitation period.

[89]      Specifically, RTA says the trial judge erred in the following manner (RTA Factum at para. 169):

[90]      The judge correctly set out the basic principles respecting causation for the tort of nuisance (RFJ at para. 386). None of the parties take issue with the applicable legal framework. The issue is the application of that framework to the evidentiary record.

[91]      Appellate courts generally do not interfere with inferences made by trial judges. Still, RTA says the trial judge made manifest errors in principle that undermine his findings, and he failed to apply the law concerning inferences. It says he made findings that are speculative, “relying on several unexplained leaps from the evidence tendered to the ultimate finding reached”. In doing so, RTA argues that the judge’s reasons fail to reconcile a substantial body of contrary evidence that should have led him to conclude that the relevant inferences could not be made.

[92]      The appellants’ position is that RTA is seeking to overturn the trial judge’s weighing of the evidence which includes scientific and expert evidence, and his findings of harm to sockeye and sturgeon. They submit that no palpable and overriding error has been identified. The findings were not speculative and there was a considerable body of evidence both from lay and expert witnesses to support his conclusions. They say RTA’s submissions are based on single decontextualized pieces of evidence or on suggestions that other evidence may have been more probative and that it is “a perilous and improper undertaking to ask this Court on appeal to weigh individual pieces of evidence”.

[93]      In light of what RTA alleges are errors with respect to causation, we review in some detail the portions of the judge’s reasons that are relevant to this issue.

[94]      He found that this was a case “where there are almost certainly multiple contributing causes to the reduction of the fishery within the waters of the [appellants’] traditional territories” (RFJ at para. 387).

[95]      At trial, RTA argued that any contribution it may have made to the diminution of fish stocks is at best “relatively minor among other causes” and that it cannot be faulted if the interference with the appellants’ fishing rights “would have come to pass anyway” (RFJ at para. 388).

[96]      The trial judge reviewed in considerable depth the effects of regulation including geomorphology and habitat and the expert evidence led by both parties on this issue. The defendants at trial acknowledged that the natural hydrograph of the Nechako River had been changed by the installation and operation of the Kenney Dam and reservoir, resulting in geomorphological changes within the river, reduced channel migration, and increased vegetation encroachment (RFJ at para. 397). The defendants further acknowledged that re-establishing the natural processes or flow regime would require substantial time—years or even several decades. However, in their view, any physical change to the river occurred decades ago and was thus outside the applicable limitation period to bring a nuisance claim. RTA also claimed that the appellants had failed to establish that the geomorphological changes in the river had actually caused the declining fish populations to constitute an unreasonable interference with their fishing rights.

[97]      The judge concluded that there was “powerful logic” to the suggestion that the “substantial alteration” to the Nechako River’s natural flow regime had led to significant changes in the river condition and habitat, which then had negative effects on the abundance and health of the fish population in the Nechako watershed (RFJ at para. 399).

[98]      He then closely reviewed what he considered to be the salient evidence, including the expert evidence (which included references to various scientific works and studies) concerning each of the species of fish in question.

[99]      With respect to the Nechako White Sturgeon, he observed that the regulation of the Nechako River was the root cause of the recruitment failure of the sturgeon:

[100]   The appellants submitted that all three experts agreed that the Kenney Dam and diversion was the cause of the recruitment failure, so it was unnecessary for them to establish the exact mechanism of factors through which the diversion was impeding the sturgeon recruitment (RFJ at para. 420). The trial judge agreed, finding as a fact that there was overwhelming evidence that the recruitment failure of the sturgeon was the result of river regulation, namely the installation and operation of the Kenney Dam and the related reservoir (at para. 421). This was sufficient to “fix RTA with liability” for the nuisance, assuming that the other requirements were present and the asserted defences did not apply.

[101]   With respect to resolving the differences between the experts, the trial judge said:

[102]   With respect to chinook salmon, the trial judge also reviewed in some detail various reports and studies including those prepared by the DFO and the NFCP which, to reiterate, were established to implement the 1987 Settlement Agreement and incorporated into the Amended CWL that was issued that same year.

[103]   He observed that “the evidentiary foundation for finding that regulation of the Nechako River is continuing to suppress Chinook productivity is rather thin” (RFJ at para. 438). He then concluded that on the whole of the evidence, while the installation and operation of the Kenney Dam and reservoir initially had a “devastating effect” on the Nechako chinook spawning, the fish had proved to be “remarkably resilient” and their population had rebounded to pre-dam levels (at para. 441). He agreed it was entirely possible that restoring a “somewhat more natural flow regime” in the Nechako River might improve the health of the chinook population even more, but he was not satisfied that such an outcome was more probable than not (at para. 441). He left that possibility open when deciding the appropriate remedies and when considering the escapement statistics in the context of the limitation defences.

[104]   He recognized that the initial devastation to the chinook salmon would “obviously” not have occurred but for the construction of the Kenney Dam, and that it was “entirely possible” that the chinook population might have grown further if the natural hydrograph had remained intact (RFJ at para. 469). However, the trial judge said there was insufficient evidence to “convert that possibility into a finding of fact even on the unscientific and less demanding balance of probabilities standard of proof” (at para. 469).

[105]   The judge then turned to the evidence and submissions relating to sockeye salmon, observing the following:

[106]   The trial judge’s review of the evidence in relation to the sockeye salmon was extensive. He referred to certain studies performed by the DFO and the expert opinions of Mr. Alan Cass for the appellants and Dr. Steven Cooke on behalf of RTA, both of whom had relied on the “ground-breaking research” of Dr. Erika Eliason from the University of British Columbia which identified stock-specific thermal tolerances of Fraser River sockeye, including those migrating through the Nechako River.

[107]   Dr. Eliason was not called as a witness at trial, but the judge considered her work, including her Ph.D. thesis and subsequent articles. He noted Dr. Eliason’s work subjecting wild fish to swimming tests and recording oxygen consumption at different speeds and water temperatures. Her results indicated “100 percent aerobic scope was available to the Stellako, Nadina, and Late Stuart sockeye at 16.8°C and the Early Stuart sockeye at 17.2°C, whereas 90 percent of aerobic scope was available to the former at 19.0°C and to the Early Stuart at 19.9°C” (RFJ at para. 453). While her conclusion was that it was “simply unknown” exactly how much aerobic scope is required for successful river migration, “perhaps approximately 90 percent of aerobic scope would be necessary for upriver populations experiencing greater migration difficulty, i.e., in the case of the Nechako Chinook, an actual (not mean) temperature at or below 19.0°C” (at para. 453).

[108]   The trial judge also considered the findings of the Cohen Commission which was unable to identify any single cause that would explain the “alarming two-decade decline in sockeye productivity” (RFJ at para. 466). He went on to observe the following about the contributing factors causing the decline in salmon:

[109]   The trial judge recognized there was “no doubt” that the installation and operation of the Kenney Dam and reservoir had substantially reduced the natural flow levels and volume of water in the Nechako River, but that alone did not mean that the river’s water temperature was higher given it was also influenced by prevailing weather conditions and their impact on ambient temperature and the ground (RFJ at para. 458). He said the rationale for having the STMP in place was because the altered hydrograph would otherwise result in higher water temperature during the spawning migration (at para. 459). Hence, the question at trial was whether the STMP had sufficiently neutralized any increase in water temperature and associated risk to the health of the sockeye that would otherwise have occurred.

[110]   He then concluded:

[111]   Finally, in considering whether liability in nuisance had been established, the trial judge stated:

[112]   RTA says that it does not specifically challenge the trial judge’s acceptance of the appellants’ expert evidence over that of its expert. In fact, RTA submits that even accepting the evidence of the appellants’ expert Mr. Cass, the judge nonetheless erred in his causation analysis.

[113]   Appellate courts are reluctant to interfere with a trial judge’s assessment of expert opinion evidence and the weight given to an expert report; considerable deference is owed to the role of the judge below (SCP 173 Realty Limited v. Costa Del Sol Holdings Ltd., 2023 BCCA 312 at para. 44). Absent manifest errors, an appellate court should not interfere with a trial judge’s findings and conclusions about expert evidence (Nelson v. British Columbia (Provincial Health Services Authority), 2017 BCCA 46 at para. 26). However, it may intervene where a trial judge has made a palpable and overriding error of fact, or an error of law (Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10, 36, 39; Barendregt v. Grebliunas, 2022 SCC 22 at para. 104). Palpable “means the error is obvious” and overriding “means that it goes to the core of the outcome of the case” (Naimi v. Yunusova, 2023 BCCA 124 at para. 30).

[114]   RTA’s first challenge to the conclusion reached on causation focuses on what it characterizes as improper drawing of inferences and speculation.

[115]   While causation can be inferred, inferences must be “based on proven facts and cannot be simply guesswork or conjecture” (Borgfjord v. Boizard, 2016 BCCA 317 at para. 55, leave to appeal to SCC ref’d, 37210 (9 February 2017)). In Graham v. Rogers, 2001 BCCA 432 (at para. 53), this Court relied on how the House of Lords delineated the difference between inference and speculation or conjecture in Caswell v. Powell Duffryn Associated Collieries, Ltd. [1940] A.C. 152 at 169–170 (H.L.):

[116]   In Fisher v. Victoria Hospital, 2008 ONCA 759, the Court explained that a “robust and pragmatic approach” cannot be used as a substitute for evidence or for reviewing and making findings about relevant evidence (at para. 58). Such an approach does not permit drawing inferences about either the ultimate issue of causation or links in the chain of causation without reviewing the relevant evidence and without making findings about the range of available inferences (at para. 59).

[117]   Caution should also be applied when extrapolating from correlative evidence to find causation, to avoid reversing the burden of proof. As the Court stated in Benhaim v. St-Germain, 2016 SCC 48:

[118]   Furthermore, while a trial judge “is not bound to accept uncontradicted and cogent evidence”, it is “incumbent on the judge to provide reasons for rejecting such evidence” (Jampolsky v. Insurance Corporation of British Columbia, 2015 BCCA 87 at para. 40).

[119]   On appeal, RTA alleges these errors with respect to the trial judge’s inferences about sockeye salmon:

[120]   The issue is whether RTA has demonstrated palpable and overriding error in the trial judge’s causation analysis within the context of what it asserts to be improper inferential reasoning and speculation. Part of the context that is relevant to considering this issue is, as we have observed above, that the trial occurred over two and a half years, the evidentiary portion concluded after 151 sitting days, and the resulting reasons for judgment were in excess of 225 pages, including appendices.

[121]   With respect to the effect of RTA’s regulation on water temperature, the appellants say that material contribution beyond de minimis does not require other causes to be eliminated nor that any precise percentage of RTA’s cause be fixed (Waterway Houseboats Ltd. v. British Columbia, 2020 BCCA 378 at paras. 136–138 [Waterway]). The appellants point to excerpts from the record that describe: (1) the effect of RTA’s regulation on temperature; (2) that flow affects temperature; (3) the harmful temperature effect on sockeye; (4) the mortality of salmon; and (5) other factors, including climate change.

[122]   Both explicitly and by implication, RTA’s submissions on causation take issue with the sufficiency of the judge’s reasons. Appellate courts “must not parse a trial judge’s reasons in a search for error” (R. v. G.F., 2021 SCC 20 at para. 69). As noted in G.F., the Court “has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient” (at para. 69).

[123]   When the trial judge’s reasons regarding causation and the sockeye salmon are read contextually and as a whole, we conclude that RTA’s submissions amount to little more than an attempt to finely parse the reasons in a search for error.

[124]   Respectfully, we consider RTA’s submissions on its challenges to the judge’s conclusions regarding the sockeye stocks to be no more than an attempt to “cherry pick” and divorce certain isolated pieces of evidence and argument from a functional and contextual reading of the extensive causation analysis.

[125]   We set out in some detail below excerpts from the causation analysis and the parties’ extensive factums to give the context through which the “minutiae” of RTA’s submissions regarding causation and the sockeye should be viewed on appeal.

[126]   RTA submits that there was no direct evidence at trial that its operation was killing sockeye salmon. For example, it says, there was no evidence that the sockeye’s mortality was elevated in the Nechako River compared to expectations or the experience on other rivers, no evidence that more were dying in years where the Nechako River was warmer, and no physical evidence that dead sockeye had been killed due to temperature.

[127]   While RTA acknowledges that sockeye have declined, it says those declines have been mirrored across the entire Fraser River watershed, and the causes of this decline are manifold. It says, as the trial judge observed at paras. 466–467 of the RFJ, that the ocean environment, climate change, overfishing, and natural events such as landslides have all been identified as major contributors.

[128]   Accordingly, RTA argues that the mere fact of a decline in sockeye stocks in no way implicates RTA’s operations and they point to the fact that, at a population level, sockeye were in fact performing better than most stocks, according to assessments undertaken by two federal regulatory agencies. RTA refers to the evidence that the Nadina run of sockeye, which was the target of the STMP because they transit the Nechako River in warmer months and for a longer distance than other Nechako runs, performed especially well under these risk assessments: only three of the 24 sockeye stocks evaluated under the DFO’s Canada Wild Salmon Policy were assessed to be at lower risk than the Nadina run, and, the risk assessment from the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) placed the Nadina run in its lowest risk classification. The Stellako sockeye, the other population that spends the most time in the Nechako, were also performing well, in the same DFO risk classification as the Nadina run, and in COSEWIC’s middle risk category.

[129]   RTA submits that if its operation was materially impairing sockeye, that impairment should have led to materially different productivity compared to the experience in other locations in the province that were not affected by its operation. Yet not only was there no evidence that the sockeye losses suffered in the Nechako River were materially worse than those experienced elsewhere in rivers unaffected by RTA, but the available evidence suggested that the opposite was the case.

[130]   A few examples from the evidence are illustrative of the appellants’ response to RTA’s submissions on this issue.

[131]   The appellants say that it was an uncontroversial fact at the trial that decreases in flows that resulted from the Kenney Dam and diversion have the effect of increasing temperatures in the Nechako River. The admissions in the ASF also amply demonstrate the highly technical nature of the evidence, which the trial judge reviewed in considerable detail in the reasons.

[132]   The appellants point out that RTA’s arguments overlook the findings that the water temperature fluctuates within a 24-hour period and across days, therefore RTA’s submissions demand a level and kind of evidence that is unavailable. Further, the appellants say that RTA side steps the judge’s finding that the STMP was being managed to a temperature too high for the safety of the salmon and those exceedances have occurred regularly. The appellants refute RTA’s suggestion that the trial judge could not have found that RTA affected the temperature at relevant times because there was no evidence to estimate temperature effects. They submit that there was evidence to allow the judge to find (as he did) that the reduction in flows had a temperature effect and harm to the sockeye.

[133]   And, furthermore, with respect to the harmful effect which temperature has on sockeye, the appellants said there was ample evidence to establish that even small increases in temperature can be detrimental during the mid-summer period when sockeye migrate through the Nechako River and the few days they spend in the river are critical to their ability to return to the spawning ground and to reproduce. In addition, they say the sockeye are extremely sensitive to water temperature; it was uncontroversial at trial that when temperatures rise, the aerobic scope was affected and the sockeye became more vulnerable to disease, exhaustion, and death prior to reproduction.

[134]   Suffice it to say that based on their review of portions of the evidentiary record, the appellants then conclude the trial judge could not and was not required to precisely quantify the contribution of RTA’s operation to harmful river temperatures, but rather he was required (and did find) that RTA’s operations had affected the temperature, and that the sockeye are being affected by those temperatures year after year. Their position is that the trial judge’s approach was logical, robust, and consistent with the case law on causation.

[135]   RTA’s summary of certain of the applicable principles to which we have referred is only of assistance to a point. That is because the deferential standard of review applies to ultimate conclusions and inferences of causation as well as underlying findings: “The judge’s decision to infer or not infer causation is a finding of fact which attracts deference on appeal” (Waterway at para. 130, citing Benhaim at para. 38).

[136]   Furthermore, it is the role of the trial judge to weigh the evidence; “[t]he fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made…” (Waterway at para. 131, citing Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33). A trial judge is not obliged to cite every piece of evidence and describe the weight they ascribe to it (Van de Perre v. Edwards, 2001 SCC 60 at para. 15). A trial judge is presumed to have reviewed the evidence in its entirety and to have based their factual findings on this review; this presumption, absent sufficient evidence of misapprehension or neglect, is consistent with the high level of error required by the test of “palpable and overriding” error (Housen at para. 72).

[137]   In our view, RTA has failed to demonstrate that in his causation analysis regarding the sockeye, the trial judge committed obvious errors which go to the outcome of his analysis.

[138]   At trial, RTA invoked the Limitation Act, R.S.B.C. 1996, c. 266, to argue that the appellants’ claims were either extinguished at law or time-barred on a number of grounds (RFJ at para. 605). On appeal, however, the issue is confined to the claim involving the Nechako White Sturgeon.

[139]   RTA argued at trial that the appellants’ claim regarding the sturgeon involves “injury to property” for the purposes of s. 3(2)(a) of the Limitation Act and is thus governed by a two-year limitation period. Whatever damage may have been caused by its activities occurred and crystallized long before September 29, 2009, that is two years before this proceeding was commenced, and no “fresh damage” has occurred since. There had been no identifiable geomorphic change in the Nechako River since 2009, no decline in the number of sockeye since 2009, no decline in the number of sturgeon, and indeed an actual increase in total population since 2009, the fishery of the Nechako White Sturgeon having been entirely closed in any event since 1994 (RFJ at para. 608).

[140]   The appellants argued that the acts which constituted the tort of nuisance could be, and in this case were, repeated and ongoing damage in respect of which a fresh cause of action arose each day that the tortious activity and the damage continued. The harm suffered by them “is not a one-time event that occurred in 1952 when the Kenney Dam was constructed, in 1987 when the Settlement Agreement was signed, or in 1997 when the Final Water Licence was issued, but rather is ongoing damage caused by ongoing suppression of the fish population” such that the appellants cannot harvest them in the same numbers that they once did (salmon), or at all in the case of the White Sturgeon (RFJ at para. 606).

[141]   However, the trial judge instead found that even though precise quantification was challenging, there was sufficiently substantial damage to sustain the claim in tort. Even though the regulated flow of the river may be the same from year to year, the resulting damage occurs anew each year. In the case of the sockeye salmon, he found their pre-spawning mortality attributable to the river temperature occurs every year to different generations of fish; for the Nechako White Sturgeon, he noted that “something about the regulation of the river” was destroying the eggs, hatchlings, and/or juveniles (RFJ at paras. 611–612).

[142]   On appeal, there is no issue as to the applicable limitation period. Rather the challenge to the trial judge’s findings centers around his application of the legal standard to the circumstances of this case. Absent palpable and overriding error, the standard of review is deferential.

[143]   RTA argues that the trial judge committed palpable and overriding errors for two reasons (RTA Factum at para. 206):

[144]   The framework which applies to the meaning of “fresh damage” is not in dispute. To establish a claim regarding an ongoing or continuing nuisance, the plaintiff bears the onus to demonstrate it suffered “fresh damage” within the limitation period; this includes presenting “such evidence that a proper inference can be drawn that damage to [their] property has occurred as a result of a fresh [cause of action]” (McGillivray v. Dominion Coal Co. Ltd. (1962), 35 D.L.R. (2d) 345 at 347, 1962 CanLII 484 (N.S.S.C.)).

[145]   In our view, the application of the relevant principles to the circumstances of this case do not demonstrate any palpable and overriding errors by the trial judge and amounts to another attempt by RTA to decontextualize the reasons in a search for reviewable error.

[146]   ML Plaza Holdings Ltd. v. Imperial Oil Limited, 2006 BCSC 352, aff’d 2006 BCCA 564, leave to appeal to SCC ref’d, 31849 (3 May 2007), provides a helpful example of the application of the “fresh damage” framework. The case involved the operation of a service station on property in a shopping mall and the contamination of soil which was caused by underground storage tanks. It was clear from the chronology that any escape of hydrocarbons that contaminated the site must have occurred before the service station was closed and the tanks were removed in 1992. In 1999, the plaintiff who was seeking to redevelop the lands brought a claim against Imperial Oil on the basis that there had been continuing damage by the expansion of the area of contamination by the movement of the hydrocarbons through the soil. The trial judge dismissed the claim.

[147]   On appeal, Justice Donald first summarized the judge’s findings and analysis on the continuing nuisance (ML Plaza Holdings Ltd. v. Imperial Oil Limited, 2006 BCCA 564 [ML Plaza CA]). The trial judge had not been persuaded that the plaintiff had established on a balance of probabilities that there was any “fresh” or “additional” damage sustained in the two-year period prior to commencing the action. To prove the continuing nuisance, the trial judge said the plaintiff would have to prove that: 1) the hydrocarbon contamination (plume) was expanding two years prior to commencing the action; and 2) that the contamination from the expanding plume resulted in “additional damage” (i.e., some tangible consequence). Finally, the trial judge found that the plaintiff had failed to prove that whatever hydrocarbon contamination was in place at the relevant time had any tangible consequence on the plaintiff, in the sense of resulting in any block to any redevelopment plans or diminution in the value of the plaintiff’s property. Justice Donald said that these were all findings of fact supported by the evidence and there were no grounds on which they could be disturbed in this Court (ML Plaza CA at para. 10).

[148]   In dismissing the appeal, the Court summarized certain of the authorities relied on by RTA, but  found that the judge was correct in her application of the authorities and on her findings of fact that all the damage caused was out of time:

[149]   We would add that in Dufferin Paving and Crushed Stone Ltd. v. Anger, [1940] S.C.R. 174 at 181, 1939 CanLII 9, the Court observed that any further damage caused within the limitation period was de minimis.

[150]   RTA essentially adopts the same approach on this “no fresh damage” issue as it does with the sockeye salmon. Its detailed submissions invite us to make different findings of fact than did the judge and/or find reviewable error arising from alleged misapprehensions of the evidence and improper inferences based on speculation.

[151]   The trial judge’s reasons, when read contextually and as a whole, support his findings that:

[152]   Based on the trial judge’s findings, it cannot be said, in our view, that in the two years prior to the commencement of the action:

[153]   We would also not accede to RTA’s argument that the trial judge improperly focussed on whether there was ongoing harm to wild sturgeon, rather than whether there was an ongoing interference with the appellants’ right to fish. Harm to the former necessarily includes interference with the broader right to fish, which includes sturgeon. As the appellants submit in their factum, interference and accommodation can be addressed on a species-specific basis where there is an any-species right (Ahousaht at paras. 226, 271).

[154]   For all of these reasons, we conclude that the judge did not err in holding that a claim of nuisance was available to the appellants, subject to the defence of statutory authority.

[155]   The principal ground of appeal raised by the appellants specific to the nuisance claim relates to the availability of the defence of statutory authority. The appellants submit that the trial judge made two errors in his interpretation and application of this defence by: (1) misinterpreting the requirements of the inevitable result part of the defence; and (2) deciding that the defence was applicable, notwithstanding that the statutory scheme unjustifiably infringes the appellants’ s. 35 rights and is therefore unconstitutional.

[156]   The trial judge recognized that there were “four main cases” that governed the defence of statutory authority in this province (RFJ at para. 523):

[157]   He summarized the principles that relate to the statutory authority defence (RFJ at para. 524). It is the application of these principles to RTA’s operations that is the focus of this ground of appeal. Accordingly, we shall return to the framework the judge outlined and the development of the defence arising from the key authorities when we consider and analyse the parties’ submissions below.

[158]   At this juncture, it is sufficient to refer to his introduction to this section of the reasons:

[159]   The appellants do not challenge the trial judge’s articulation of the framework that governs the defence. Rather they say he misinterpreted the requirements of the “inevitable result” test, applied it incorrectly, and erred by concluding that the defence had been established in the circumstances of this case.

[160]   They submit that the judge’s finding that the harm amounting to a nuisance is the inevitable result of RTA’s statutory authority, while declining to determine whether there exist feasible alternatives within the authorized flow release range that would avoid the nuisance, is an error of law.

[161]   We referred above to Susan Heyes; in that case, this Court reaffirmed that the existence of nuisance is a question of fact and thus the trial judge’s findings and inferences of fact are approached with considerable deference (Susan Heyes at para. 48). We recognize, however, that in both Susan Heyes and Sutherland, this Court did not specifically address whether this standard applied to findings regarding the defence of statutory authority.

[162]   We agree with RTA that this issue is properly characterized as a question of mixed fact and law because it concerns whether the trial judge properly applied the law in the context of the facts before him (Housen at paras. 26–27). Whether the trial judge “misinterpret[ed] the requirements” of the inevitable result test, as the appellants allege, necessarily engages his factual findings that include those relating to causation, his interpretation of RTA’s authorizations, and his assessment of the evidence of feasible alternatives.

[163]   In our view, the trial judge’s conclusions regarding RTA having established the existence of the defence raise questions of mixed fact and law, which, absent palpable and overriding error, engage a discretionary standard of review.

[164]   The trial judge reviewed the salient background relating to the “authorized work”, namely the statutes, water licences, and settlement agreements. He concluded that the defence of statutory authority applied, noting that the Kenney Dam was constructed in accordance with plans approved by both levels of government and the water licences expressly authorized the diversion of water from the Nechako River, its storage in the reservoir, and its use for hydroelectric production. Further, he found that RTA had always operated within the parameters of its authorizations and rarely diverted more than the limit specified in its water licences. The only time that occurred was due to flooding concerns in Vanderhoof, and in each of those cases, the exceedances were authorized expressly by the Comptroller of Water Rights. Any resulting harm to the fish/fishery in the Nechako River was the inevitable result of those regulatory requirements (RFJ at paras. 532, 661).

[165]   With respect to the issue of inevitable result and practical feasibility, the trial judge agreed with RTA that it was not necessary for him to address this question because RTA had been given specific authority and direction for the construction and operation of the Kenney Dam and the related reservoir, the diversion of water, and the timing and release of the volume of water into the Nechako River (RFJ at para. 535).

[166]   He nonetheless conducted an analysis of the suggested feasible alternatives identified in Saik’uz 2015, finding that: (1) RTA’s “design and construction plans for the Kenney Dam were specifically approved by both levels of government” (RFJ at para. 530), a fact not before this Court in 2015; (2) both levels of government “agreed that a water release facility at the Kenney Dam was unnecessary” (at para. 535); and (3) it was “neither prudent nor practically feasible for a water release facility to have been incorporated into the Kenney Dam” (at para. 536).

[167]   He then commented on the role of the Technical Committee, observing that the flow regime imposed by way of the 1987 Settlement Agreement is mandatory and comprises the specified flow rates for each month (or as otherwise directed by the Technical Committee) (RFJ at para. 538). Even though variances at RTA’s request are possible, the approval and direction of the Technical Committee is still required; therefore, it is that Committee which governs the flow regime and any inevitable result of its directions is a matter for the Committee to rectify, “assuming practically feasible options exist” (at para. 538).

[168]   The judge rejected the appellants’ argument that a feasible alternative would be for RTA to change its business practices to accommodate an increased flow of water into the Nechako River, noting that RTA is not obliged to change its operations or practices (even if harmful impacts occur) so long as RTA is acting within the constraints of its lawfully authorized activity (RFJ at para. 542).

[169]   As we have noted, no challenge is taken to the trial judge’s summary of the legal principles with which we also agree. He committed no reviewable error in proceeding with this framework as he did. For ease of reference, we set out that summary below:

[170]   As was observed in Saik’uz 2015, the defence of statutory authority developed over time and there was disagreement in the jurisprudence over how it should be applied and in what circumstances. These differences were most pronounced in the 1989 decision from the Supreme Court of Canada in Tock which, for the most part, were resolved ten years later in 1999 in the Court’s unanimous decision in Ryan. In 2002, this Court in Sutherland provided its analysis of the defence as derived from both Tock and Ryan. The trial judge’s summary of the applicable framework to the defence was largely adopted from Sutherland. It bears emphasizing that in Sutherland, leave to appeal to the Supreme Court of Canada was refused.

[171]   We will now set out further details about these three salient authorities because the framework developed in this jurisprudence is, in our view, determinative of the issue.

[172]   In Tock, the Supreme Court of Canada addressed the issue of whether the defence of statutory authority applied to absolve a municipality of liability in nuisance. The Court unanimously agreed to allow the appeal, but the reasons for doing so varied.

[173]   Tock resulted in three separate opinions among the six justices, leaving no clear majority on the scope of the defence. Three justices (Justice Wilson, writing for herself, Justices Lamer and L’Heureux-Dubé) favoured limiting the defence to cases involving either mandatory duties or statutes that specify the manner of performance, noting that the availability of the defence depends on the language of the statute and what it in fact orders, authorizes, or permits. Two justices (Justice La Forest, writing for himself, and Chief Justice Dickson) took the view that the defence should be reformulated in more functional terms and rejected the notion that the distinction of whether a statute is permissive or mandatory is, without more, determinative. Only Justice Sopinka (writing for himself) supported maintaining the status quo and making the defence available regardless of whether the statutory authorization was mandatory or permissive.

[174]   Justice Sopinka found that there was not a strong basis or unanimity for departing from the existing state of the law. He supported the traditional approach to the defence, relying heavily on the passage from the House of Lords in City of Manchester v. Farnworth, [1930] A.C. 171 [Manchester] to which the trial judge here referred and which had been adopted by the Court in City of Portage la Prairie v. B.C. Pea Growers Ltd., [1966] S.C.R. 150, 1966 CanLII 101, as well as other appellate courts, including this Court in Royal Anne at 760.

[175]   Justice Sopinka was of the view that there was no question that legislation — either expressly or implicitly — may authorize an interference with private rights and cause a nuisance. The language in the case law was such that the defence is established whether the nuisance is authorized expressly or by implication. The distinction between mandatory or permissive legislation did not appear to be relevant under this traditional view because the work would still be authorized by statute (Tock at 1225):

[176]   With respect to the “inevitable consequences”, he explained that this term was “the expression of the factual conclusion that the necessary causal connection exists between the work authorized and the nuisance” (Tock at 1225). If the necessary connection exists, then it follows that the legislature authorized that which is the inevitable consequence from the work described in the statute.

[177]   Ryan was a claim pled in negligence, and alternatively in public nuisance. The issue before the Court was the effect of statutory authority on the civil liability of railways. The appellant was a motorcyclist who was injured while trying to cross railway tracks on an urban street in Victoria. His front tire became trapped in a “flangeway” gap that was running alongside the inner edge of the tracks. At the time, the flangeways on the street were about one-quarter of an inch wider than the front tire of the appellant’s motorcycle. The motorcyclist sued the City of Victoria and the railway companies which owned and operated the tracks. The railways denied liability on the basis that the tracks were authorized by and in compliance with statutory authority.

[178]   Regulations from the Canadian Transport Commission provided that flangeways at crossings could be anywhere from 2.5 to 4.75 inches wide. The same dimensions were adopted in the railways’ own standard practice. It was common ground that the flangeways on the street always remained within that prescribed range (Ryan at para. 8). The decision to construct a flangeway at a particular width within that range was a matter left to the discretion of the railways (at para. 50). The trial judge found that at the time of the accident, the flangeways had been reduced to the minimum width of 2.5 inches required under the regulations (at para. 9). He found the railways liable in nuisance, but this Court set aside that finding on the basis that they were protected by the defence of statutory authority in that “the flangeways were an inseparable consequence of requiring the tracks to be laid at street grade flush with street level and the roadway paved between the rails” (at paras. 12, 18).

[179]   The Supreme Court of Canada allowed the appeal and restored the trial judgment. In its unanimous decision, the Court attempted to resolve the uncertainty which arose from Tock by adopting the traditional, that is the “Manchester” approach supported by Sopinka J.:

[180]   Sutherland involved a claim brought by a number of plaintiffs against the Vancouver International Airport Authority due to the noise nuisance caused to the nearby residents by the use and operation of the north runway at the airport. The issue was whether the location, construction and operation of the airport’s north runway was authorized by statute such that it rendered the defendants immune from the lawsuit (at para. 36). This Court found the trial judge had erred in holding that the defendants had not met the onus of establishing the defence of statutory authority.

[181]   This Court undertook a detailed analysis of the various statutes, orders-in-council, and subordinate legislation to find that there was ample statutory authority for location, construction, and operation of the north runway. There were precise details in the regulations and the airport manual as to the location and specifications for each of the runways at the airport. There was also authority designating the airport authority to use the leased lands as a major international airport and requiring the airport authority to manage, operate, and maintain the airport at a level that met the capacity demands at the airport.

[182]   There was no express authority in the legislation or subordinate legislation for the noise nuisance, so the question was whether such an authority was implicit in the statutory scheme (at para. 77). There was no doubt that the statutory scheme authorized the construction of the north runway in the location it occupied; the lease required the airport authority to construct the north runway as specified in the Environmental Assessment Review Panel report and the ground lease identified the precise location and configuration (at para. 78). In addition, the airport operations manual further identified the location, its operation, and configuration. The airport certificate provided statutory authority to operate an airport in a specific location. The operation of the north runway was also equally clear (at para. 96).

[183]   This Court found it was an error to interpret the lease as providing discretion of whether to build the north runway. The lease expressly required the airport authority to “plan, design and construct the third runway” as defined. It was therefore required to build the runway and if it failed to do so, rent would become payable and it would also be in breach of contract (at para. 89). Further, the Court decided it was an error for the trial judge to inquire into other possible locations for the new runway. The inevitable result test should have applied to the north runway in its authorized location and where it was in fact built because the location was specifically authorized (at para. 104). The decision of where to locate the runway was not a legal issue but a matter for public policy considerations (at para. 107), and it was irrelevant to consider because once the factual connection existed between the nuisance and the authorized work, it followed that the nuisance was authorized by statute (at paras. 113–14). As such, the defendants had met the test to be able to rely on the defence.

[184]   We shall return to Sutherland below.

[185]   The first part of the two-step defence of statutory authority is whether the activity or work is authorized by statute. In Tock at 1225, Sopinka J. stated “[a] work is authorized by statute whether the statute is mandatory or permissive, if the work is carried out in accordance with the statute”. As discussed above, he rejected the distinction between public works that are required and those that are permitted. Hence, at the first stage of the test, it does not matter whether the statute uses mandatory or permissive language, it will still be considered to be “authorized” if the work or activity is being carried out in compliance with the statute. The first stage of the test was satisfied in this case.

[186]   The statutory and subordinate legislative authorizations that are summarized above provide ample bases for establishing that RTA had the necessary authorizations for the storage, diversion, and use of water in relation to the Kenney Dam and Nechako Reservoir.

[187]   The judge found that the IDA authorized RTA’s work and no challenge is taken on appeal regarding this finding.

[188]   The FWL established that the storage, diversion, and releases/flow were authorized by the statutory scheme as set out in the Settlement Agreements and water licences. From the evidence and the findings of the trial judge, RTA operated and stored water within the parameters set out; these were permissive in that RTA could store and divert water up to the maximum amounts set out in the FWL.

[189]   RTA was also authorized to provide flows and releases necessary for the protection of the sockeye and chinook salmon. The 1987 Settlement Agreement required RTA to release minimum flows, but the agreement did not prevent RTA from releasing more than that amount. As we have noted above and will return to below, however, it is the Technical Committee, not RTA, that makes the ultimate decision regarding the flows. The trial judge found that the flow regime, as directed by the Technical Committee, is mandatory and that it is the Technical Committee that governs the flow regime. Furthermore, whatever may be the inevitable result of the Technical Committee’s directions is a matter for it to rectify, assuming practical feasible alternatives exist (RFJ at para. 538).

[190]   Since the works and activity in this case were authorized, the question under the second part of the defence is whether the nuisance (the significant effects and harm to the fish/fisheries) was the inevitable result of RTA carrying out the work and thus explicitly or implicitly authorized by the statute and regulatory scheme.

[191]   Assessing the inevitable result at this stage means that if there is a necessary causal connection between the authorized work and the nuisance, then the legislature is said to have authorized the inevitable consequence of the work described in the statute (Tock at 1225–1226; Sutherland at para. 101; Susan Heyes at para. 79).

[192]   The appellants say that RTA enjoyed a discretion within the limits set by the statutory authorization. RTA accepts there is a range within which the activity can be conducted, but it submits this does not change the analysis.

[193]   To address this issue, we consider whether this case is more analogous to Sutherland or Ryan. Is it comparable to Ryan, as the appellants submitted, because of the range of discretion involved and constraints placed on RTA’s common law obligations to take all reasonable steps to minimize foreseeable harm? Or is it similar to Sutherland, which RTA submits is dispositive, because it involved explicit authorization for the construction and operation of the works at issue? Since there was a factual connection between the nuisance and the authorized work in Sutherland, RTA argues that it follows that the nuisance in the present case was authorized by statute and the subordinate legislation. It cautions against differentiating between mandatory and permissive authorizations because it says that this distinction does not apply in light of Ryan.

[194]   In our view, this is an oversimplification of what was decided in Ryan, which is distinguishable from Sutherland on two key points: (1) the defendants had a range of discretion within which to construct the works; and (2) the statutory authority defence was found not to apply in Ryan.

[195]   Both decisions, however, reflect how the courts still consider the wording of statutory authorizations (whether mandatory or permissive) in assessing the application of the defence to the circumstances of each case. The appellants and RTA’s positions on this issue essentially diverge on the discretion involved in Ryan and the specific requirements applicable in Sutherland. However, it was not the permissive language that barred the availability of the defence in Ryan, but the fact that other alternatives were available.

[196]   The language of the FWL appears to provide for a range within which RTA can operate (store, divert, and use the water) while still being in compliance with the limits set out in the licence. It provides that the maximum quantity of water that may be stored is 23,850 cubic-hectometres; and, the maximum rate of diversion and use for power purposes is 170 cubic-metres per second. The judge found that RTA had always operated within the parameters of its authorizations and never diverted more than the limit specified in the water licences, unless it received special permission to do so (RFJ at para. 532).

[197]   RTA does not consider itself obliged to explore alternatives because it says the statutory authority, which includes the subsidiary laws (see Sutherland at paras. 69–76), is sufficient to protect it if a nuisance results from operating at the maximum.

[198]   The appellants point to cases where courts have grappled with situations where government permission authorizes a range of action within which degrees of impact from the action vary from less severe to actionable nuisance. Referring, inter alia, to Manchester and Ryan, they say the courts have been clear that while the conduct may be legally permissible within the range permitted by government regulation, it may still run afoul of private law protections against nuisance. They say the statutory restrictions are not the full extent of the defendant’s legal obligations given that tort law remains unless the legislature intended to displace it.

[199]   The appellants argue that there is an ongoing obligation on RTA to operate the Kenney Dam in a way that avoids the losses to the fisheries. In addition, the IDA itself demonstrates that the statutory authority always envisioned a balance to protect fisheries, which has not been achieved.

[200]   RTA says that the appellants’ theory regarding permissive authorizations suggest that if there is discretion not to undertake the authorized activity, it is then a feasible alternative not to pursue the activity that has been specifically authorized.

[201]   The trial judge here, however, declined to engage in determining whether there were possible feasible alternatives for the construction and operation of the Kenney Dam and the reservoir in respect of the timing or volume of water to be released into the Nechako River (RFJ at para. 535). He did, however, discuss “as a cautionary measure” three possibly feasible alternatives that were suggested in Saik’uz 2015 and in light of RTA’s evidence about the operational and practical constraints applicable to the reservoir regulation (at paras. 536–542). He rejected those alternatives, finding that RTA operating within the parameters of the licences issued over time including the FWL was the inevitable cause of harm to the fish/fishery.

[202]   At this juncture we wish to comment on Saik’uz 2015. The appellants submit that the judge erred in “declining to determine whether there exist feasible alternatives”, which they say is a “direct refutation” of that decision.

[203]   We disagree. As we discussed with respect to the issue of standing, the decision in Saik’uz 2015 was to the effect that RTA’s motion to strike the action should not have been granted because there were matters that needed to be “explored through the discovery process and at trial in order to determine whether the alleged nuisance [was] the inevitable result of what was authorized by the statutory authority” (Saik’uz 2015 at para. 102).

[204]   Now that the trial has occurred, the judge’s conclusion as to the availability of the statutory authority defence must be assessed within the context of his findings at trial.

[205]   We would add that Saik’uz 2015 does not refer to the role of the Technical Committee, a factor which was instrumental in the trial judge’s analysis of the defence (RFJ at para. 538), to which we shall return below.

[206]   We are of the view that the framework outlined and applied in Sutherland should apply in this case.

[207]   While clearly authoritative for its formulation of the underlying principles, Ryan has several features which can be distinguished from those in this case.

[208]   First, the claim was primarily framed and decided in negligence even though the railways were also found liable in public nuisance.

[209]   The regulations at issue in Ryan applied nationally and provided discretion that could be exercised respecting flangeways at crossings. The decision to construct a flangeway at a particular width within that range at a given crossing was a matter left to the discretion of the railways. The railways had independent and exclusive control over the exercise of that discretion. This is qualitatively different from the case at bar, in which the Technical Committee directs the flow regime to which RTA must adhere within the ‘discretionary range’.

[210]   It is of assistance to refer to the Court’s analysis in Ryan finding that the defence of statutory authority was not established in the circumstances of that case:

[211]   The Court in Ryan addressed the “inevitable result” in a limited way (at para. 56). Specifically, it did not discuss what “practical feasible alternatives” were available to the railways in the circumstances, presumably because the decision to exceed the minimum prescribed in the regulations was a matter of discretion and not the inevitable result of complying with the regulations. However, the Court recognized this was part of the traditional test, quoting Sopinka J.’s statement that “[t]he defendant must negative that there are alternate methods of carrying out the work” (at para. 55, citing Tock at 1226).

[212]   The statutory context in both Tock and Ryan was crucial to the inevitable result analysis.

[213]   Both Tock and Ryan involved statutes and a regime of statutory authority that were not directed to the specific work, activity or conduct that was the subject of complaint. In Tock, it was the Municipalities Act, S.N. 1979, c. 33 (see Tock at 1205–1206). In Ryan, it was various versions of the Railway Act and Regulations (see Ryan at paras. 13–14).

[214]   In contrast, the statutory regime in this case was enacted specifically in relation to RTA’s construction of the Kenney Dam and to its operations over many years.

[215]   Moreover, as found by the trial judge, when the RTA scheme was initially put in place (RFJ at para. 529):

[216]   There are references in the ASF (for example in the section dealing with the Kenney Dam’s construction at paras. 226–268) that set out certain concerns raised regarding the fisheries. The construction proceeded nonetheless. The statutory scheme, as it developed over time, has authorized RTA to conduct its operations for the better part of 70 years despite the recognized harm to the fisheries. There has also been litigation regarding the fisheries. During this entire period, RTA remained authorized to conduct its operations.

[217]   The potential nuisance which later materialized was explicitly or, at least implicitly, recognized in the scheme as developed over the years. The 1987 Settlement Agreement preserved the right of the DFO to compel more flows to the Nechako River for the protection of fish and habitat. It also established the Technical Committee which was given the mandate to set the flow regime to which RTA has adhered. The Technical Committee must also approve any variations RTA seeks to the mandated flow regime.

[218]   As a result of the 1987 Settlement Agreement, the legislative scheme gives RTA no real discretion as to the flow regime. RTA participates on the Technical Committee, but it cannot, of its own accord, change that regime. This factor represents a fundamental difference between the statutory scheme in this case and those in Tock and Ryan. The schemes in those cases did not limit the discretionary range available to the defendant based on directions that were mandated and specific to the actions that cause the nuisance. Nor did those schemes implicitly or explicitly contemplate the very nuisance that materialized at a later date.

[219]   Three years after Ryan, this Court decided Sutherland. Since the trial judge in this case essentially followed the Sutherland framework in his consideration of the defence, it is necessary to review the decision in further detail.

[220]   The statutory scheme is summarized in Sutherland at paras. 36–51 and included not only statutes of general application such as the Aeronautics Act, R.S.C. 1985, c. A-2, the Public Lands Grants Act, R.S.C. 1985, c. P-30, and the Airport Transfer (Miscellaneous Matters) Act, S.C. 1992, c. 5, but also “various pieces of subordinate legislation” that were specifically directed to the Vancouver International Airport Authority and the designation and operation of the proposed new runway including a proposed ground lease (Sutherland at paras. 42–51). The ground lease did not specify where the new runway was to be constructed. Like this case and unlike, for example, Manchester, the legislative scheme contemplated the precise nuisance that materialized, that is, noise to the neighbouring properties (at para. 107).

[221]   Of significance in Sutherland, which is not an issue on this appeal, was the first part of the statutory authority defence test: “was the activity or work at issue authorized by statute?”

[222]   After a comprehensive analysis, Chief Justice Finch, for the Court, concluded that “there is ample statutory authority for the operation of the North Runway” (Sutherland at para. 100).

[223]   In considering the second step of whether the noise nuisance was the inevitable result (and therefore “implicitly authorized” by statute), this Court said it was an error for the trial judge to “embark on an inquiry” into other possible locations that could have avoided the noise nuisance because the statute had authorized the precise location and configuration of the runway (Sutherland at para. 104). Instead, this Court found that the inevitable result test should have been applied to the runway in its authorized location and where it was in fact built. The issue of location, as discussed earlier, was a matter of public policy rather than a legal issue.

[224]   This Court emphasized:

[225]   The appellants here say that the judge, in performing the inevitable result analysis, erred in not conducting a practically feasible inquiry, which is part of the framework from Sopinka J. in Tock that was endorsed in Ryan at para. 55.

[226]   Sutherland concluded that the plaintiffs’ answers to the inevitable result test did not fit within the “legal framework laid down by the Supreme Court of Canada” (at para. 117), with this Court stating:

[227]   The first part of the statement is clearly a reference to step one of the defence —establishing whether the work was authorized by statute. We interpret the latter phrase “and express or implied authority to cause a nuisance as the only reasonable inference from the statutory scheme” to refer to the inevitable result aspect of the defence; that is, where “the statutory scheme” clearly contemplated the precise “work, activity or conduct complained of” either expressly or impliedly.

[228]   The statutory scheme in Sutherland considered and included measures to address the noise nuisance arising from the new runway’s location. The noise nuisance was the inevitable consequence of what the statutory scheme authorized, so Parliament was taken to have authorized the nuisance too (at para. 118). That being the case, there was no need for the defendants to establish that there were practical reasonable alternatives to proceeding in a manner different from what they were expressly authorized to do. In fact, it was principally the plaintiffs who proposed what were submitted to be the feasible alternatives. Thus, the “necessary factual connection exist[ed] between the nuisance and the authorized work, [and] it follow[ed] that the nuisance was authorized by statute” (at para. 114). As such, it was a complete defence for the defendants.

[229]   In Susan Heyes, this Court distinguished Sutherland:

[230]   This Court then considered the issue of practically feasible alternatives concluding:

[231]   In our view, the trial judge correctly followed the approach in Sutherland. First, he summarized a number of factors relating to the authorized work, and these factors then informed the context for his analysis on the inevitable result (at para. 529).

[232]   The judge’s reasoning was consistent with Sutherland because in this case:

[233]   The trial judge then followed the structure and analysis set out in Sutherland to assess the inevitable result part of the test as it related to the authorized work (the Kenney Dam) and activity (the storage and diversion of water).

[234]   The judge agreed with RTA that it was not necessary for him to address whether there existed possible feasible alternatives because it had been given specific authority and direction for the construction and operation of the Kenney Dam and the related reservoir, the diversion of water, and the timing and release of the volume of water into the Nechako River (RFJ at para. 534).

[235]   We highlight certain points that appear to have informed the trial judge’s conclusions. First, he found that British Columbia knew full well that the construction of dams and reservoirs would have a substantial impact upon rivers and lakes within the region and hence potentially upon the fish/fishery in such waters, yet it required no protection whatsoever for the fish as part of the review/approval of the design, construction, or regulation of the works. Second, the role of the Technical Committee, which was part of the 1987 Settlement Agreement and incorporated in the FWL, removes any discretion by RTA regarding the flow regime.

[236]   The judge, as this Court did in Sutherland, nonetheless conducted an analysis of the suggested feasible alternatives, but it was based on the suggestions from this Court in Saik’uz 2015 (RFJ at paras. 530, 535–536).

[237]   Our view is that the question of practical feasible alternatives does not arise here.

[238]   Similar to Sutherland, the statutory scheme at issue in this case, including the subordinate legislation, contemplated a nuisance flowing from the prescribed works. When the scheme was first established, and as it developed over the years, the Legislature understood that impact to the fisheries was the inevitable result of RTA operating as prescribed. It nonetheless authorized and continued to authorize the works. By doing so, it must be taken to have authorized the nuisance itself. In these circumstances, it was “practically impossible” for RTA “to avoid the nuisance” when operating as prescribed (Tock at para. 56). If the defence of statutory authority could not be successfully invoked in a legislative scheme and factual context such as exists here, it is difficult to contemplate a situation where it could be.

[239]   Accordingly, we are of the view that the appellants have failed to identify and establish a reviewable error in the trial judge’s conclusion that RTA had met the onus of establishing the defence of statutory authority and would not accede to this ground of appeal.

[240]   We next turn to the issue of constitutional inapplicability as it relates to the defence of statutory authority.

[241]   The appellants submit further that even if the statutory authority defence meets the common law standard, it is nonetheless inapplicable in this case because the statutory regime unjustifiably infringes the appellants’ s. 35 rights and is therefore unconstitutional.

[242]   This argument requires consideration of the interplay, if any, between a nuisance claim brought under the common law and the constitutionally protected rights in s. 35 of the Constitution Act, 1982. The appellants submit that the Crown’s ongoing conduct in permitting the diversion and storage of water of the Nechako River infringes the appellants’ established right to fish in the watershed, and therefore cannot be relied on as a defence to their private law nuisance claim. They state that they are not challenging the validity of the authorizations, but rather the applicability of those authorizations to the extent that they affect their Aboriginal fishing rights.

[243]   The intervener, Nadleh Whut’en, supports this argument. Nadleh Whut’en submits that while ordinarily a party raising the defence is required to establish that the act causing the nuisance was both authorized by statute and the inevitable result of the statutorily-authorized action, when a claim in nuisance alleges interference with a s. 35 right, a third factor must be considered: whether the authorization relied upon is inconsistent with s. 35 Aboriginal rights. If that third factor is met, their position is that the defence must be unavailable.

[244]   The question then becomes whether, as a matter of law, the defence of statutory authority to a nuisance claim is unavailable to a defendant if the authority upon which the defendant relies infringes a s. 35 right. The appellants have framed the issue as whether the statutory authorization is constitutionally inapplicable to the appellants because of its infringing effect on the appellants’ s. 35 rights, unless the Crown can justify the infringements.

[245]   The trial judge rejected this submission. He found that the framework of constitutional inapplicability was not available on the facts of this case because the statutory authorizations at issue did not apply to the appellants but rather to RTA (RFJ at para. 569). He agreed with RTA that the appellants were in effect challenging the validity of the instruments that authorized RTA’s “impoundment and regulation of the River flows” (at para. 570). Notably, in Saik’uz 2015, the appellants said they were not seeking to set aside or challenge the validity of the water licences and related instruments (at para. 570; see Saik’uz 2015 at para. 114).

[246]   The trial judge further agreed with the defendants that “equating the tests for nuisance and rights infringement blurs some distinct lines that exist to establish responsibility for alleged wrongs”; specifically, the responsible party in the nuisance test is the alleged tortfeasor, whereas the government is the responsible party in the test for rights infringement (RFJ at para. 572). In the trial judge’s view, that distinction is “glossed over” by marrying the tests (at para. 572). As such, he said: “[i]f actions authorized by government (whether through unconstitutional legislation, licences, or agreements, or a combination of all of these) result in harm to the plaintiffs’ rights, only government must answer for that” (at para. 572).

[247]   The judge also found the appellants’ position untenable because it would be unjust and inappropriate to deny the availability of the defence to a private entity in such circumstances:

[248]   The appellants rely on the principle that statutes that unjustifiably infringe an Aboriginal right are constitutionally of no force or effect in relation to the holder of the right. Thus, statutes of general application could be said to be inapplicable to Aboriginal rights holders, though valid in relation to those not possessing s. 35 rights (see e.g., Sparrow; R. v. Marshall, [1999] 3 S.C.R. 456, 1999 CanLII 665; R. v. Desautel, 2021 SCC 17). In each case in which the issue of constitutional applicability has arisen, the law has constrained the rights holder in a manner contrary to their s. 35 rights.

[249]   The IDA does not on its face apply to the appellants. Pursuant to s. 1(1)(a), the statute applies to “any person who proposes to establish or expand an aluminum industry in British Columbia”. As such, it applies to RTA, not the appellants.

[250]   The theory of the appellants is that although the legislation does not constrain them directly, the effect of the legislation is to authorize activity that interferes with their ability to fish. Thus, the legislative scheme should be regarded as inapplicable to them, in the sense that it cannot be relied upon in a way that results in interference with their fishing rights.

[251]   The appellants raise three arguments in support of their submission that the trial judge erred in his rejection of the constitutional inapplicability argument. First, they submit that his conclusion is incompatible with this Court’s decision in Saik’uz 2015.

[252]   Second, the appellants submit that third parties may be held liable for infringement of s. 35 rights, and accordingly, the trial judge was wrong to maintain a strict distinction between the private law action in nuisance and the public law consequences of Crown action.

[253]   Finally, they submit that the judge’s conclusion is inconsistent with the conclusion in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot’in] that once s. 35 rights have been established, it may be necessary for the Crown to reassess prior conduct in relation to projects that may infringe those rights.

[254]   A central argument of the appellants is that the trial judge’s conclusion is incompatible with this Court’s judgment in Saik’uz 2015. To assess that argument, it is necessary to review what the Court actually decided in that judgment.

[255]   This lawsuit was commenced in September 2011. In 2013, RTA brought an application for summary dismissal of the action. RTA’s position was that as long as s. 35 rights are claimed but not proven, Aboriginal peoples who claim rights have no cause of action against private parties for interference with those claimed rights.

[256]   The chambers judge dismissed the application for summary judgment based on the defence of statutory authorization, but struck the pleadings on the basis that a claim in nuisance based on asserted but unproven claims to s. 35 rights had no reasonable chance of succeeding (Thomas v. Rio Tinto Alcan Inc., 2013 BCSC 2303).

[257]   On appeal of the order striking the appellants’ pleadings, this Court began by reviewing the test for striking pleadings. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. It is not determinative that the law has not yet recognized a particular claim; the court must err on the side of permitting a novel but arguable claim to proceed to trial (Saik’uz 2015 at paras. 34–35, citing R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42).

[258]   This Court pointed out that the appellants had pleaded facts that, if true, would support Aboriginal title to lands along the banks of the Nechako River:

[259]   The Court said this in respect of the claim based on the Aboriginal right to fish:

[260]   What the Court decided in Saik’uz 2015 was that the claims of the appellants should proceed to trial because it was not plain and obvious that they would fail. As noted earlier, concluding that claims should be permitted to go to trial does not stand in the way of a judgment after trial dismissing the claims.

[261]   The Court referred to but did not try to resolve the question of whether the statutory authorizations were constitutionally inapplicable to the appellants. The appellants say that the trial judgment is incompatible with paras. 114 and 116 of the judgment in Saik’uz 2015. However, when those paragraphs are read in context with para. 115, it is apparent that the Court was simply concluding that it was not an abuse of process to make the argument:

[262]   In our view, nothing in this Court’s judgment in Saik’uz 2015 determines the question of whether RTA may rely on the defence of statutory authority, or whether the defence is constitutionally inapplicable. These issues were left for trial.

[263]   The determination of the validity of the constitutional inapplicability argument depends upon whether the protection arising from s. 35 may be used to take away a common law defence to a private law claim in nuisance.

[264]   The appellants submit that there is no reason s. 35 rights cannot be relied on for a claim against a private party. They rely on an interpretation of the seminal case of Haida for that proposition. It is to that interpretation that we turn.

[265]   The appellants take issue with the trial judge’s reliance on what he termed at para. 572 as “distinct lines that exist to establish responsibility for alleged wrongs”. As discussed above, the trial judge’s conclusion was that the appellants’ remedy should lie against the Crown if the undertaking at issue and authorized by the Crown has unjustifiably harmed the appellants. The reason for this was because in a test for rights infringement, the government is the responsible party (RFJ at para. 574).

[266]   The appellants point out that remedial orders for unjustified infringement of s. 35 rights frequently impact third parties. That is, however, a very different proposition from the assertion that the establishment of s. 35 rights creates a cause of action against non-governmental parties.

[267]   It is indisputable that a remedy against the Crown may affect third parties. The appellants cite several cases where the result of the infringement by the Crown impacted third parties, including Tsilhqot’in, Ahousaht, and West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247, leave to appeal ref’d, 34403 (23 February 2012) [West Moberly 2011].

[268]   None of these judgments arose from a private law action against a third party. In each case, the remedy was against the Crown, although the effect of the remedy had a knock-on effect on private parties relying on Crown authority.

[269]   In Tsilhqot’in, the Court held that a substantial area of what had been formerly characterized as Crown land was held by the Tsilhqot’in by Aboriginal title. Timber licences had been issued by the provincial government over this land. The Court characterized the effect of this as a “meaningful diminution in the Aboriginal group’s ownership right [that] will amount to an infringement that must be justified in cases where it is done without Aboriginal consent” (Tsilhqot’in at para. 124).

[270]   Nothing in the judgment in Tsilhqot’in suggests that the establishment of Aboriginal title gave rise to a cause of action against the timber licensees. Indeed, it was clear that even the ongoing viability of the licences depended on whether the Crown could justify granting the licences, notwithstanding the infringement of the Tsilhqot’in’s Aboriginal title:

[271]   The judgment in Tsilhqot’in turned on principles of public law. No order was sought against third parties based on infringement of s. 35 rights, and the Court did not make any order against third parties (Tsilhqot’in at para. 153).

[272]   The Ahousaht judgment has more direct resonance to the claim at bar because it was based on the establishment of Aboriginal fishing rights. Again, the case was not brought against third parties and no order was sought or obtained against third parties, although the effect of the judgment was understood throughout to have a negative impact on non-Aboriginal commercial and recreational fishers because of the priorities set by the regulatory regime.

[273]   The trial judge had held that certain requirements of the DFO that infringed the Ahousaht’s Aboriginal fishing rights were justified, but other requirements, including the priority given to recreational fishing over the Ahousaht’s commercial fishing rights, were not. The appellants rely on the judgment of this Court affirming the trial judge’s conclusions, but also holding that there were additional fishery requirements that had not been justified by the Crown (RFJ at paras. 213–227, 251, 276–279).

[274]   Nothing in these passages suggests that the infringing act of the federal Crown in not according the Ahousaht the priority to which they were due created any direct rights against the recreational fishers who had had the benefit of the infringing act.

[275]   The order of the Court was declaratory in nature. No order was sought or made against third parties.

[276]   The issue in West Moberly 2011 was whether the provincial Crown had adequately consulted and reasonably accommodated the Treaty 8 hunting rights of the West Moberly people before issuing a permit to a third party. The trial judge held that they had not, and stayed the permit to allow further consultation. The judge’s decision was affirmed by this Court. No order was made against the third party, but the stay of the permit undoubtedly impacted the third party.

[277]   In all of these cases, the claim was brought for declaratory and consequential relief against the Crown. No private law claim was made and no order was made against third parties affected by the Crown’s infringing or potentially infringing act.

[278]   Finally, the appellants rely on this passage from Tysoe J.A. in Saik’uz 2015:

[279]   The passage from Haida to which Tysoe J.A. referred appears in the discussion concerning whether third parties owed a duty to consult and accommodate Aboriginal rights claimants. The Court answered that question in the negative, explaining that, “The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests” (Haida at para. 53).

[280]   After addressing and rejecting other theories for third party obligations of consultation and accommodation, the Court in Haida concluded as follows:

[281]   It is apparent that the Court in this passage is addressing liability for common law causes of action, not liability for infringement of s. 35 rights. Nothing in Haida supports the theory that third parties can be directly liable for infringement of Aboriginal rights.

[282]   Aboriginal rights may, however, ground a common law claim in tort. That was the context for this Court’s comments in Saik’uz 2015, as illustrated by the Court’s statement that:

[283]   The trial judge here ultimately held that in this case, the appellants’ Aboriginal right to fish did ground the claim in nuisance. Given the connection between the Aboriginal right to fish and the reserve lands and waterbeds in question, that conclusion was sufficient to raise the defence of statutory authority, on which this appeal turns.

[284]   This jurisprudence is consistent with the trial judge’s conclusion that if the appellants’ s. 35 rights are being infringed by the ongoing authorization of the Crown concerning the storage of water from the Nechako, the appellants’ remedy lies against the Crown, not the third party RTA.

[285]   The appellants’ third argument respecting constitutional inapplicability argument is based on Tsilhqot’in at para. 92:

[286]   The appellants take the position that once their Aboriginal fishing rights had been established, it was incumbent on the trial judge to consider whether the legislation relied on by RTA for their statutory authority defence had been rendered inapplicable going forward to the extent that it unjustifiably infringed their constitutionally protected Aboriginal rights.

[287]   We agree that now that the appellants’ s. 35 rights have been established, it may be necessary for the Crown to reconsider its conduct in light of the changed circumstances. However, should that obligation properly arise, it is an obligation of the Crown, not third parties.

[288]   The impact of a determination of s. 35 rights on prior legislation is more challenging, and depends on the context in which the issue arises. In this case, the authorizing legislation is the IDA, enacted many decades before the events that give rise to the current dispute.

[289]   The appellants have not, however, advanced their claim on the basis of historical infringement, but rather on the ongoing water storage and diversion authorized by that legislation and the resultant adverse effects. They have disclaimed any reliance on s. 35 to challenge the validity of RTA’s licence. Can the statutory authority for that licence be said to be valid in relation to RTA’s licence but “inapplicable” to the appellants?

[290]   The appellants face a number of hurdles in attempting to establish that the statutory authorizations relied upon by RTA are constitutionally inapplicable to the appellants, and thus cannot be relied upon by RTA to defend a nuisance claim. The authorizations do not constrain the appellants as fishing and hunting regulations have in other cases. As noted, the appellants do not assert that the IDA constitutes an historical infringement and do not challenge the validity of RTA’s licences.

[291]   The trial judge concluded that if the statutory regime has harmed the appellants, their remedy lies against the Crown. Accordingly, we would not give effect to this ground of appeal as we see no error in this conclusion. It is unnecessary to consider the trial judge’s comments in obiter dicta concerning infringement of the appellants’ s. 35 rights given that constitutional inapplicability has no application to this dispute.

[292]   No declaration of Aboriginal title was sought in this litigation; however, the appellants submit that the trial judge erred in failing to make a “finding” of Aboriginal title.

[293]   The initial relief sought was entirely against RTA pursuant to the nuisance claim. It included a permanent injunction restraining RTA from conducting its operations in such a manner as to cause nuisance to the appellants and a mandatory injunction requiring RTA to abate the effect of the nuisance claimed.

[294]   After the provincial and federal governments were added as defendants in 2016 (over the appellants’ objections), the appellants’ claim was amended to include a claim for a declaration that the governments have a fiduciary duty to require RTA to cease operating in a way that continues to cause nuisance to the appellants.

[295]   The question of Aboriginal title entered the litigation indirectly. Historically, a claim in nuisance has generally required a proprietary interest on the part of the plaintiff. The appellants sought to meet that requirement on the basis of their s. 35 rights, either by reference to their Aboriginal right to fish in the Nechako River watershed, or their claim to Aboriginal title to the lands adjacent to the Nechako, or their interest in and occupancy of Noonla Indian Reserve #6 and Stellaquo Indian Reserve #1.

[296]   In their final submissions at trial, the appellants confirmed that a declaration of Aboriginal title was neither sought nor necessary, but that a finding of Aboriginal title “may be necessary to support the nuisance claim and/or the breach of riparian rights claim”. The appellants then stated that “if this Court accepts that Aboriginal rights (as distinct from title) are legally sufficient to ground a nuisance claim, it will not be necessary for the Court to consider Aboriginal title”.

[297]   The appellants went on to state:

[298]   As we discussed earlier, the trial judge accepted the appellants’ primary position that their Aboriginal right to fish “is a legally sufficient foundation for an action in private nuisance” (RFJ at para. 377). Thus, it was unnecessary on the appellants’ submissions for him to consider Aboriginal title.

[299]   The trial judge did go on to consider Aboriginal title. He explained that he would address issues and make findings of fact on matters that were not necessary to the outcome, in order to avoid the necessity of conducting a retrial should his conclusions be overturned on appeal (RFJ at para. 170). Thus, much of the analysis on title in the reasons for judgment is obiter dicta and unnecessary for the order under appeal, unless the conclusions of the trial judge that form the ratio decidendi are overturned.

[300]   In his consideration of Aboriginal title, the judge recognized that no claim for Aboriginal title was sought by the appellants, but rather a “finding” of title (RFJ at para. 267). He reviewed the history of other unresolved claims to Aboriginal title in the area, and concluded that there was an insufficient evidentiary basis to determine exclusivity among overlapping claimants (at para. 276). Accordingly, the trial judge declined to make the requested finding of Aboriginal title (at para. 278).

[301]   In keeping with his decision to address issues and make findings of fact on matters that were not necessary to the outcome of the trial, to avoid the necessity of retrial after appellate review, the trial judge went on to consider the evidence and make alternative findings with respect to Aboriginal title (RFJ at paras. 279–343).

[302]   The judge summarized the evidence and held that if he was wrong in declining to make a finding of Aboriginal title because of overlapping claims, he would hold that Aboriginal title to the Noonla Indian Reserve #6 should be and is vested in the Saik’uz First Nation, and Aboriginal title to the Stellaquo Indian Reserve #1 should be and is vested in the Stellaquo First Nation (RFJ at paras. 305, 316). He characterized this conclusion as a “limited and alternative finding of title” (at para. 317).

[303]   The trial judge then considered the appellants’ claim for a finding of Aboriginal title to certain portions of the Nechako River, Stellaquo River and Fraser Lake, and the riverbeds surrounded by those reserves.

[304]   After reviewing the evidence and the judgment of the Ontario Superior Court of Justice in Saugeen First Nation et al. v. The Attorney General of Canada et al., 2021 ONSC 4181 [Saugeen], rev’d in part Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, the judge concluded that the conflict between the exclusivity of Aboriginal title and the primacy of the public right of navigation might provide “a potentially insurmountable barrier to a finding of Aboriginal title” in any Aboriginal title claim to the bed of a navigable waterway (RFJ at para. 331).

[305]   The trial judge then stated that he was not dismissing the appellants’ alternative claim for waterbed title on the merits, but rather “deferring determination of that issue to a case where the question can be decided on a more complete evidentiary record” (RFJ at para. 334).

[306]   On appeal, the appellants confirmed in their factum that their claim in nuisance “was grounded in their Aboriginal right to fish and, in the alternative, their Aboriginal title to places along the Nechako River and its tributaries used for fishing.”

[307]   The appellants accept the trial judge’s finding that their Aboriginal right to fish provides the necessary foundation for a nuisance claim, but they take issue with his first alternative conclusion declining to make a finding of Aboriginal title because he considered that there was not the evidentiary record to determine exclusivity between overlapping claims.

[308]   The appellants frame this issue on appeal as whether the trial judge erred in failing to make what they characterize as “formal findings” of Aboriginal title. As well, the appellants assert that the trial judge erred “in holding that Aboriginal title is incompatible with a public right of navigation.” They seek an order that a finding of Aboriginal title to the reserves and fishing sites should be made on appeal.

[309]   It bears emphasizing that this is a nuisance claim against RTA; and, the appellants did not seek a declaration of Aboriginal title.

[310]   At trial, the appellants stated that it would not be necessary for the court to consider Aboriginal title if the trial judge accepted that Aboriginal rights were sufficient to ground the nuisance claim. The judge did conclude that Aboriginal rights were sufficient to ground the nuisance claim, and with the qualification referred to earlier in this judgment, this Court has upheld that conclusion. Thus, on the appellants’ own case, no finding with respect to Aboriginal title was required.

[311]   The trial judge went on to consider whether in any event, there was the necessary evidentiary record to determine exclusivity between overlapping claimants, and he concluded that there was not. This was an evidentiary determination to which deference to the trial judge is appropriate.

[312]   The trial judgment becomes somewhat more complicated because of the decision to make alternative findings so that if the trial judge’s decision was reversed on appeal, there would be findings of fact available for a reviewing court to consider.

[313]   With that goal in mind, the judge reviewed the evidence and made findings concerning the appellants’ interest in their reserves. These findings were couched in the following qualifying language:

[314]   It is always helpful for a trial judge to make findings of fact that are available on the evidence. As the trial judge here pointed out, a full assessment of the facts may permit an appellate court to make a decision without the necessity of a retrial, which can be efficient for the parties and the administration of justice.

[315]   Here, however, the trial judge went beyond a determination of the facts to attaching legal consequences to those facts which were inconsistent with his primary conclusions. If the evidentiary record was insufficient to determine exclusivity, an essential requirement for Aboriginal title, then to make a finding of Aboriginal title in obiter dicta is both inconsistent and, respectfully, unhelpful. It appears to have led to an issue being raised on appeal that does not arise from the order made and is unnecessary to resolve.

[316]   The issue of Aboriginal title is unnecessary to resolve in this case because the appellants made a decision early in the litigation to sue RTA in nuisance and not to seek a declaration of Aboriginal title. The only relevance of Aboriginal title was to provide a foundation for the nuisance claim in the event that the appellants’ fishing rights were considered insufficient to provide the necessary legal foundation for the claim.

[317]   We have confirmed that given the connection between the Aboriginal right to fish and the reserve lands and waterbeds, the appellants’ fishing rights were sufficient to ground the nuisance claim, and accordingly there was no need to consider the alternative claim for a finding of Aboriginal title sufficient to provide a foundation for the claim. Courts should be cautious about answering constitutional questions that are not essential for the determination of the case.

[318]   As an illustration of this principle, in R. v. Adams, [1996] 3 S.C.R. 101, 1996 CanLII 169, the appellant defended a charge of fishing without a licence on grounds of both Aboriginal rights and Aboriginal title. The Supreme Court of Canada accepted that he had satisfied the test for Aboriginal rights. Since the appellant had relied primarily on the Aboriginal rights claim, which was successful, the Court held that it was unnecessary to consider the claim for Aboriginal title to the lands in the fishing area (Adams at para. 34).

[319]   Here, the appellants relied primarily on their s. 35 fishing rights and the connection between these rights and their reserve lands to ground the nuisance claim. This argument was successful at trial and has been affirmed on appeal. There was no need to consider the alternative claim for Aboriginal title.

[320]   As the trial judge went on to conclude that in any event, there was not a sufficient evidentiary record to determine the essential element of exclusivity, there was no basis on which Aboriginal title could have been found.

[321]   We would not give effect to this ground of appeal.

[322]   Similar considerations apply to the question of title to submerged lands. No relief was sought in the pleadings concerning title to submerged lands. At trial, the appellants sought a “finding” of Aboriginal title to certain portions of the Nechako River, Stellako River and Fraser Lake.

[323]   The trial judge declined to make such a finding because this position was “significantly weakened” by the general lack of evidence that the appellants exercised exclusive control over the waters. There were also conflicting expert opinions relating to sadeku ownership and control of rivers and riverbeds (RFJ at para. 330).

[324]   The trial judge also pointed out that there was a significant issue as to whether such title can exist under Canadian law given the public right of navigation. He described the public right of navigation as “potentially insurmountable”. He concluded that “[w]ithout some development in the law, there may be no path to Aboriginal title to submerged lands beneath navigable waterways” (RFJ at para. 333). Particularly due to the lack of evidence about the exclusive control of the waters, he declined to make any findings in obiter that would alter the definition of Aboriginal title to submerged lands because it could amount to a significant development in the law (at para. 333).

[325]   On appeal, the appellants submit that on the record before the Court, the judge should have found that Aboriginal title had been made out to the submerged lands near the reserves.

[326]   Once again, the relevance of this issue to the appellants’ nuisance claim is unclear. The trial judge found that the effect of RTA’s diversion and storage of water created a nuisance actionable against RTA. The dispositive question is whether RTA can rely on the defence of statutory authority.

[327]   The Supreme Court of Canada has not determined the question of whether Aboriginal title can subsist in water or lands submerged by water. As the judge pointed out, the test for Aboriginal title appears to contemplate dry land that can be used and occupied. Whether submerged lands can be the subject of Aboriginal title is a significant issue that should be addressed in a case with proper pleadings that raise the issue squarely.

[328]   Here, the pleadings, though amended as recently as 2019, do not seek any order with respect to submerged lands, any more than they seek an order with respect to Aboriginal title more generally. This is a nuisance claim. There was no reason to make any finding with respect to title to submerged lands, and the judge did not err in declining to do so.

[329]   One issue that both the appellants and several interveners raise in connection with the trial judge’s reasoning is his statement that the public right of navigation might provide “a potentially insurmountable barrier” to a finding of Aboriginal title to the bed of a navigable waterway.

[330]   The interveners, joined by British Columbia, point out that this question is squarely at issue in the Saugeen case, then pending before the Ontario Court of Appeal, and submit that it is unhelpful for a court in British Columbia to comment on the question in a case where it does not relate to any issue necessary to be decided by the court.

[331]   Since the trial judgment was released, and since argument was presented on appeal, the Ontario Court of Appeal has published reasons for decision addressing this issue (Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2023 ONCA 565, leave to appeal to SCC sought, 40979 [Chippewas ONCA]). The Court concluded that whether Aboriginal title could be established to submerged lands was to be assessed in accordance with the test set out in Tsilhqot’in.

[332]   The Ontario Court of Appeal concluded that Aboriginal title to submerged lands was not necessarily incompatible to the public right of navigation, but might be depending on the scope of the title determination and the consequences of such a determination. Once the precise scope of the Aboriginal title has been established, it can be determined whether such Aboriginal title is not cognizable due to common law public rights, or whether such Aboriginal title would have such a substantial effect on public navigation as to create an incompatibility between Aboriginal title and the public right (Chippewas ONCA at paras. 93–98). The Court remitted the issue back to the trial court to determine whether the Aboriginal title claim could be established to a more limited and defined area than that claimed by the plaintiffs (at para. 299).

[333]   It is unnecessary for us to express an opinion on this issue, and we agree that it was unnecessary and unhelpful for the trial judge to comment on it. This important and complex question should be addressed in a case where the pleadings make it a live issue, as it is in the Chippewas case. Whether the public right of navigation stands in the way of Aboriginal title to submerged lands should be decided in a case where the issue has been properly raised.

[334]   We see no error in the trial judge declining to make a finding of Aboriginal title to submerged lands. We add that any comments made by him on the prima facie strength of any such claim, either in the context of this case or otherwise, are of no precedential value.

[335]   Accordingly, we would not give effect to this ground of the appeal.

[336]   Lastly, we turn to the issue of declaratory relief. This was the only remedy granted by the trial judge.

[337]   Declaratory relief was granted against both Canada and British Columbia. The trial judge issued a declaration stating that each government has an “obligation” to protect the appellants’ Aboriginal right to fish for food, social and ceremonial purposes in the Nechako River watershed. The appellants say the declaration is inadequate and the trial judge erred in declining to direct Canada and British Columbia to compel RTA to take specific steps to abate the nuisance. As such, the nature and the scope of the declaration are at issue on appeal.

[338]   Granting (or declining) declaratory relief is discretionary and subject to a deferential standard of review. Generally, an appellate court will not interfere with a decision about declaratory relief absent a material error of law or principle, or a palpable and overriding error of fact (Interfor Corporation v. Mackenzie Sawmill Ltd., 2022 BCCA 228 at para. 26 [Interfor]).

[339]   For the reasons set out below, we are satisfied the trial judge erred in principle in resolving the claim for declaratory relief. Furthermore, we consider the error to have been material and it warrants a variation of the declaration granted by him.

[340]   In addressing this aspect of the appeal, it is helpful to first review the pleadings specific to declaratory relief.

[341]   As previously noted, the appellants’ original notice of civil claim against RTA was filed in September 2011. Canada and British Columbia were not named as parties. RTA applied to add them as defendants in 2016. The appellants resisted the application. Canada and British Columbia did not oppose the request, although one or both of them sought to attach conditions to their involvement in the litigation.

[342]   The trial judge granted the application in August 2016, without conditions. In reasons for judgment indexed at 2016 BCSC 1474 [Thomas 2016], he set out his rationale for doing so. This included:

[343]   The appellants were directed to amend their style of cause to add Canada and British Columbia as parties (Thomas 2016 at para. 28). They were also given “liberty to make any other amendments to their Notice of Civil Claim that they [considered] appropriate in light of the addition of the federal and provincial Crown as defendants” (at para. 28).

[344]   In October 2016, the appellants filed an amended notice of civil claim pleading material facts specific to the involvement of both levels of government in regulating the flow regime in the Nechako River. The amended notice of civil claim did not include a claim for relief specific to government.

[345]   In January 2017, Canada and British Columbia each filed a response to the amended notice of civil claim. The appellants filed a reply in February 2017 and repeated their October 2016 pleadings. In addition, they claimed that:

[346]   These alleged infringements were said to be unjustified because, among other things:

[347]   With leave, the appellants’ notice of civil claim was amended a second time in February 2019.

[348]   The application seeking leave to amend put Canada and British Columbia on notice that the proposed further amendments would “expand the relief claimed regarding abatement of the alleged nuisance [by RTA] and add an additional remedy in the form of declaratory relief against the Crown defendants” (emphasis added). According to the related application materials, the further amendments had three main objectives:

[349]   After leave was granted, the appellants filed their second amended notice of civil claim, adding a request for declaratory relief against Canada and British Columbia.

[350]   In this notice, the appellants alleged that Canada had a historical and subsisting obligation or duty to protect the appellants’ fishery and proprietary interests from damage arising out of “[Canada’s] own acts or authorizations”. These “acts or authorizations” included agreement to specific water flows in the Nechako River.

[351]   The appellants also alleged that “Canada [had] failed to ensure that the water flows it purported to authorize or agree to were, or continue to be, effective” in protecting the appellants’ interests, and had “failed to act or make reasonable efforts to alter the water flows to which it purported to agree”.

[352]   As against British Columbia, the appellants alleged that the provincial Crown failed to act in good faith to “reconcile its obligations to the [appellants] to reduce the impacts” of the diversion of water from the Nechako River or any permits issued by British Columbia.

[353]   Under “Relief Sought”, the second amended notice of civil claim requested:

[354]   The “Legal Basis” for declaratory relief was stated as follows:

[355]   In its response to the second amended notice of civil claim (filed in March 2019), Canada opposed the request for declaratory relief on the basis that the proposed declarations were: (1) unclear and vague; (2) improper to the extent that they sought to impose an “impermissible mandatory obligation” on Canada; and (3) “unnecessary insofar as they seek to restate the law”.

[356]   In its response (filed in February 2019), British Columbia similarly objected to the declaratory relief. It said the trial judge should decline to grant the proposed declarations on grounds that they:

[357]   After the trial commenced, the trial judge asked the appellants to “provide the precise wording” of any declaration they sought specific to government (RFJ at para. 631). They responded with this articulation (at para. 631):

[358]   The trial judge’s substantive discussion of the claim against Canada and British Columbia is found in Part XV of the RFJ, under the heading: “Remedies and Orders Sought”. He summarized the appellants’ position this way:

[359]   The “proposed adaptive management regime” referred to in para. 621 is the “functional flow” regime proposed by Professor Eaton, a witness called in support of the appellants’ positions at trial (RFJ at para. 619). The trial judge acknowledged at the outset of his analysis on remedies that the federal and provincial governments have a constitutional obligation to protect Aboriginal rights and to act honourably in doing so (at para. 643, citing West Moberly First Nations v. British Columbia, 2020 BCCA 138, leave to appeal to SCC ref’d, 39292 (21 January 2021) [West Moberly 2020]). In the latter case, Chief Justice Bauman, writing on behalf of the majority, stated it was “uncontroversial that the Crown has an obligation, constitutionally enshrined, to protect Aboriginal rights both treaty and non-treaty, and to act honourably in doing so” (at para. 424).

[360]   In this case, the trial judge found that the appellants “have an Aboriginal right to fish the waters of the Nechako watershed for food, social, and ceremonial purposes …” (RFJ at para. 644). By the end of the trial, RTA, Canada, and British Columbia each conceded the existence of an Aboriginal right to fish (at para. 242).

[361]   As already explained, the trial judge also found that the “installation and operation of the Kenney Dam and related reservoir have harmed the fish and the fishery in the Nechako watershed” (RFJ at para. 647), and that this harm is “the inevitable result of the approvals, permits, agreements, and directions made by both levels of government over the years” (at para. 647, emphasis added).

[362]   As we understand it, neither Canada nor British Columbia disputed the fact that the natural hydrograph of the Nechako River has been changed by the installation of the Kenney Dam and related reservoir (at paras. 390, 397). Indeed, the Supreme Court of Canada has previously accepted that such is the case (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 3 [Rio Tinto 2010]).

[363]   The trial judge recognized that although he had applied the defence of statutory authority in favour of RTA, thereby absolving RTA of legal liability for common law nuisance, the “question remain[ed] whether the ongoing harm to the fishery trigger[ed] any obligation on the part of the Crown to require additional protection for the fish by increasing water flow from the reservoir into the Nechako River” (RFJ at para. 648, emphasis added). See also para. 614.

[364]   Consistent with the majority reasons in West Moberly 2020, the trial judge concluded that once the appellants had proved an Aboriginal right to fish, both Canada and British Columbia bore an “obligation” to protect that right “by taking all appropriate steps to protect the fish [in the Nechako River watershed] and to act honourably in doing so” (RFJ at para. 646).

[365]   It is within the context of “ongoing harm” and future adverse effects that the appellants sought declaratory relief against Canada and British Columbia, asking that they be ordered to require RTA to “stop doing certain things and start doing others” (RFJ at para. 649).

[366]   The trial judge declined to issue a declaration holding that to meet their new-found “obligation”, Canada and British Columbia were duty-bound to “require” of RTA the specific actions sought by the appellants (including reinstating the Nechako River’s “functional flow”), and he dismissed this aspect of their claim for declaratory relief (RFJ at para. 661). The order entered after trial reads this way:

[367]   Dismissal of the specific terms sought by the appellants (as opposed to the request for a declaration, generally), reflected the trial judge’s agreement with RTA, Canada and British Columbia that the declaration articulated by the appellants and, importantly, the specific duties it would impose on the two governments, rendered the declaration “essentially coercive in nature” (RFJ at para. 651), and required significant revision to achieve clarity (at para. 653). Moreover, the trial judge was concerned that through the proposed declaration, the appellants sought to “[compel] the Crown to require RTA to deliver certain specified increased flows and thus to breach the contracts and other statutory instruments which have governed the relationship between RTA and the Crown over the years” (at para. 651).

[368]   The trial judge was not prepared to grant this form of a declaration in the “absence of any concurrent liability on the part of the RTA” (RFJ at para. 651). He concluded that the proposed duties for Canada and British Columbia would likely invite “another round of complicated litigation between the parties” (at para. 651), namely, between RTA and both levels of government in light of the relationship between these entities, the agreements reached, and the overarching legal framework that governs their interaction.

[369]   The trial judge was prepared, however, to grant a declaration that was more general in nature and that he considered would benefit the appellants in light of the “new reality” arising from his reasons (RFJ at para. 653). He found that neither the federal Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, nor the provincial Crown Proceeding Act, R.S.B.C. 1996, c. 89, precluded him from doing so. On appeal, Canada and British Columbia appear to accept that these enactments do not prevent a declaration of the nature fashioned by the trial judge.

[370]   We take the trial judge’s reference to a “new reality” to be the appellants’ now “constitutionally recognized Aboriginal right to fish the Nechako watershed for food, social, and ceremonial purposes” (RFJ at para. 661), and his conclusion that the regulation of water flows in the Nechako River has had, and continues to have, significant negative impact on this right and on the appellants as Indigenous communities (at paras. 493, 588, 661). At para. 493 of the RFJ, the trial judge described the impact as “substantial … one that is hugely disproportionate to the burden imposed on the non-Aboriginal population of the region”.

[371]   To this end, he granted the following declaration (RFJ at para. 653):

[372]   As readily apparent from the wording, the trial judge declined to delineate in the declaration any specific duties that might flow from the “obligation to protect [the appellants’] Aboriginal right”, or to direct Canada and British Columbia to conduct themselves in a particular way.

[373]   The appellants say the granted declaration falls markedly short. In their factum, they allege the trial judge erred by refusing to “make an order that the Crown require a change in flow by [RTA] to address the nuisance, despite finding that the Crown has a duty to protect [their] Aboriginal rights”.

[374]   In fleshing out this error, the appellants contend the trial judge wrongly understood that his authority to grant their proposed terms was inextricably bound to (or dependent upon) a finding of common law liability against RTA. Such was not the case, and, pointing to the outcomes in cases such as Restoule v. Canada (Attorney General), 2021 ONCA 779, leave to appeal to SCC granted, 40024 (23 June 2022), judgment on reserve (8 November 2023), Ahousaht, and Yahey v. British Columbia, 2021 BCSC 1287, the appellants say that even without a finding of liability against RTA, the trial judge had the legal jurisdiction and a sufficient evidentiary foundation from which to grant declaratory relief against Canada and British Columbia that is directive in nature and would appropriately protect the “remedial nature and promise of s. 35(1) of the Constitution”. The appellants say their pleadings contemplated relief against the federal and provincial Crown separate from liability for nuisance against RTA, and was grounded in the assertion of one or more Aboriginal rights and the Crowns’ independent duty to protect those rights.

[375]   The appellants contend in their factum that the bare declaration granted by the trial judge inadequately protects their Aboriginal right to fish from “ongoing significant, and imminent further harm by [RTA]”. It is “merely a declaration that states what the law has been for years…”, and, if allowed to stand, will result in a substantial injustice. What was required, here, was specific direction that Canada and British Columbia require RTA to stop operating and managing the Kenney Dam and related reservoir in a manner that causes a nuisance. The appellants say it is not enough for the two levels of government to acknowledge the finding of an Aboriginal right to fish and to commit (as they did at the trial and on appeal), to being mindful of that right in their future conduct (RFJ at para. 652). Something more substantial is needed in the form of court-ordered direction that delineates specific duties arising out of the prospective obligation, and directs Canada and British Columbia to follow through in the form of particularized measures. The appellants allege that without directive declaratory relief, there will be no substantive change to the situation involving the Nechako River and the detrimental impacts on the watershed and the appellants’ protected interests.

[376]   On appeal, the appellants seek to have the declaration granted at the trial set aside and replaced with:

[377]   This latest proposed wording does not extend as far as the relief sought in the second amended notice of civil claim, or the specific wording advanced at the trial in response to a request from the trial judge. It has moved away from the language of “fiduciary duty” (replacing it with a duty to act “diligently”), and does not seek to have Canada and British Columbia require of RTA that it “reinstate the functional flows that make up the natural flow regime of the Nechako River”. However, the appellants continue to seek declaratory terms that compel both governments to compel RTA to conduct itself in a particular way.

[378]   Declaratory judgments offer an inherently flexible remedy, one which allows parties to “determine their rights before the breach of an obligation, and to prevent the violation of a right by ascertaining its scope in advance” (Malcolm Rowe and Diane Shnier, “The Limits of the Declaratory Judgment” (2022) 67:3 McGill L.J. 295 at 299 [Rowe & Shnier]).

[379]   In this sense, declarations can be “highly useful instrument[s]” (Rowe and Shnier at 299) to address ongoing and future conduct that carries the potential to impact protected rights. Declarations are available even “where the precise content of all rights affected is unknown” (West Moberly 2020 at para. 307).

[380]   In exercising the discretion to grant a declaration, “courts maintain key aspects of our system of judicial decision-making, such as an adversarial process” (Rowe and Shnier at 299). In S.A. v. Metro Vancouver Housing Corp, 2019 SCC 4 [Metro Vancouver Housing], the Supreme Court of Canada affirmed the four pre-conditions to declaratory relief:

[381]   Meeting these pre-conditions does not invariably lead to a declaration. Instead, the presence of the pre-conditions renders the case one in which a declaration “may be” appropriate (Metro Vancouver Housing at para. 60; West Moberly 2020 at para. 309). The actual granting of relief remains permissive.

[382]   To that end, before granting a declaration, a court must generally satisfy itself that the sought-after order has practical utility or would serve a “useful purpose” in the context of the facts of the case and the parties’ interests (West Moberly 2020 at paras. 310–312; Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para. 11). “Detached facts and general pronouncements of law have little utility” (West Moberly 2020 at para. 312).

[383]   In demonstrating practical utility or a useful purpose, the applicant for declaratory relief need not establish that a declaration will have an actual effect on their rights; rather, “if there is a possible effect on rights… there is discretion to grant declaratory relief” (West Moberly 2020 at para. 330, emphasis in original). As explained in Kent Roach, Constitutional Remedies in Canada, 2nd ed. (Toronto: Thomson Reuters, 2022) at § 12:3 [Roach]:

[384]   There must be a “cognizable threat to a legal interest” before the courts will use a declaration as a preventative measure (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 457, 1985 CanLII 74 [Operational Dismantle]; West Moberly 2020 at para. 330).

[385]   Although the trial judge did not address this issue in his analysis, no one has suggested on appeal that the Metro Vancouver Housing pre-conditions for declaratory relief did not exist in this case. Indeed, neither Canada nor British Columbia filed a cross-appeal challenging the trial judge’s authority to grant a declaration. Instead, the dispute on appeal is whether it was open to the trial judge to grant a declaration with the specific terms sought by the appellants.

[386]   RTA argues that the trial judge correctly rejected the appellants’ proposed terms. RTA says that through a declaration, the appellants sought to impose a mandatory obligation on Canada and British Columbia to “require” (or compel) RTA to stop diverting water in the manner it has long been authorized to do.

[387]   RTA contends that once the trial judge determined that the nuisance was the inevitable result of the authorizing infrastructure in which RTA operates, and not actionable at common law, it would have made no sense to then issue a declaration that, in its practical effect, wholly undermined these very conclusions. Doing so would render the dismissal of the claim in nuisance meaningless and allow the appellants to achieve indirectly what they could not do directly, namely, obtain injunctive relief that compels RTA to operate differently. It would also allow the appellants to force substantive changes to the statutory, regulatory and other instruments that permit RTA to operate as it does, without bringing an action that properly allowed for a challenge to the validity of those instruments. Throughout these proceedings, the appellants have expressly disavowed an intention to challenge the validity of RTA’s water licences.

[388]   Canada also says it was open to the trial judge to decline the appellants’ proposed declaration. First, the appellants did not articulate a specific cause of action against the federal government or any proper legal basis for declaratory relief of the nature sought by them. Second, and in any event, Canada argues that the proposed declaration (as formulated at the trial and on appeal), is unavailable at law.

[389]   British Columbia also supports the trial judge’s ruling. In its factum, it says the “appellants did not seek relief against the Crown independent of their claim against [RTA], nor did the trial judge make any finding of liability against the Crown”. The request for declaratory relief was “inextricably tied” to the appellants’ claim against RTA, and, once the trial judge dismissed the claim in nuisance, that was the end of the matter. The proposed declaration, as framed by the appellants, must logically suffer the same fate.

[390]   In any event, British Columbia says declaratory relief of the nature sought by the appellants is not available in the absence of a finding of “liability” against government. The trial judge did not find that British Columbia breached a duty. Comments about one or either of the government defendants having unjustifiably infringed the appellants’ Aboriginal right to fish were made, at best, in obiter (see RFJ at paras. 576, 588, 590, 601, 647). The appellants did not plead a basis for injunctive-type relief other than nuisance. They chose not to bring an action for damages or other relief against government that was grounded in historical conduct.

[391]   We disagree with the positions advanced by RTA, Canada, and British Columbia on this part of the appeal. Although it was open to the trial judge to reject the specific declaratory terms sought by the appellants, he nonetheless committed a material error in principle in resolving this part of the claim.

[392]   In our view, the trial judge took an unduly narrow approach to the scope of declaratory relief that was properly available to him in the context of the appellants’ pleadings, and, critically, in light of his findings of a proved Aboriginal right to fish and the ongoing impairing effects on that right of storing and diverting water from the Nechako River. The restrictive approach resulted in a declaration that, because of its generalized nature, is of no real practical utility to the appellants.

[393]   As noted, the trial judge recognized that distinct from RTA’s liability for common law nuisance, the appellants’ case required him to consider whether the “ongoing harm to the fishery trigger[ed] any obligation on the part of [Canada and British Columbia] to require additional protection for the fish by increasing the water flow from the reservoir into the Nechako River” (RFJ at para. 648). He was correct to identify this question as one that properly arose on the pleadings.

[394]   Contrary to the submissions of Canada and British Columbia, a fair reading of the appellants’ second amended notice of civil claim and related materials supports the submission that their claim for declaratory relief against the two levels of government was not wholly dependent upon and exclusive to establishing liability against RTA. Respectfully, Canada and British Columbia’s submissions on this point fail to consider the pleadings as a whole. They also fail to appreciate, as noted in Da’naxda’xw/Awaetlala First Nation v. British Columbia (Energy, Mines and Natural Gas), 2016 BCCA 163 at para. 90, leave to appeal to SCC ref’d, 37074 (10 November 2016), that “a measure of flexibility is required with respect to pleadings and prayers for relief when considering Aboriginal claims in particular”. See also Tsilhqot’in at paras. 20, 23.

[395]   The appellants’ request for declaratory relief cited alleged historical failures by Canada and British Columbia to adequately protect the appellants’ constitutionally entrenched interests. However, it was also grounded in the governments’ ongoing and presently active participation in the regulation of water in the Nechako River. In our view, the appellants’ pleadings and the trial judge’s finding of resultant “damage” that newly manifests itself each year (RFJ at paras. 611–612), provided a sufficient factual and legal basis from which to consider declaratory relief against government that was prospective in nature, and independent of liability against RTA.

[396]   Nor was it necessary for the trial judge to find liability against Canada and British Columbia before he had the authority to grant a declaration. The Metro Vancouver Housing pre-conditions for declaratory relief existed, here, and the law is clear that a declaration “is available without a cause of action and whether or not any consequential relief is available” (Ewert v. Canada, 2018 SCC 30 at para. 81, internal references omitted).

[397]   Dismissing the private law claim against RTA did not mean there was no longer a “cognizable threat to [the appellants’] legal interest[s]” (Operation Dismantle at 457). To the contrary, ongoing and future impairment of the appellants’ right to fish and associated harm to their Indigenous communities logically arose from the trial judge’s non-obiter findings. These findings have not been displaced on appeal and they include determinations that:

[398]   The trial judge described the Technical Committee’s flow regime as “mandatory” (RFJ at para. 538). He also found, as a fact, that it is the “Technical Committee which governs the flow regime, and whatever may be the inevitable result of the Technical Committee’s directions is a matter for the Technical Committee to rectify, assuming practically feasible options exist” (at para. 538). As noted, the trial judge also found that “[b]oth governments are … directly involved in setting the flow” (at para. 531, emphasis added).

[399]   This finding (not challenged by way of a cross-appeal), finds support in the ASF. The ASF stipulates that the Technical Committee’s “mandate includes the management of the [annual water allocation]” established by the 1987 Settlement Agreement. The annual water allocation is defined as “the quantity of water required to be released in accordance with the provisions of [the 1987 Settlement] Agreement during each [twelve-month] period commencing on the first day of April in each and every year...” (ASF at paras. 448, 455).

[400]   According to the ASF (at para. 461):

[401]   The ASF goes on to state that the Technical Committee has directive authority vis-à-vis RTA (at para. 465):

[402]   The trial judge found that Canada’s role on the Technical Committee involves continued and present-day active involvement in governance of the flow regime. British Columbia is in the same position. In addition, Canada has federal statutory powers that can affect the flow (for example, under the Fisheries Act, R.S.C. 1985, c. F-14), and British Columbia carries provincial authority over RTA’s water licence. The trial judge found a clear nexus between both levels of government and the ongoing regulation of the Nechako River. He found that regulation of the flow regime has adversely affected the appellants’ right to fish, and, on the evidence, continues to do so. He also found that even under the existing regime, whether grounded in their role on the Technical Committee or otherwise, Canada and British Columbia retain “some ability to increase the flow of water into the Nechako River” (RFJ at para. 590). In other words, they have retained a measure of discretion.

[403]   It is within this specific context that the trial judge issued a declaration against Canada and British Columbia, correctly recognizing that the “new reality” provided a proper factual and legal basis for such a remedy (RFJ at paras. 589, 653). From his perspective, the findings he made in resolving the nuisance claim resulted in both Canada and British Columbia incurring an “obligation to protect the [appellants’] Aboriginal right to fish by taking all appropriate steps to protect the fish and to act honourably in doing so” (at para. 646).

[404]   However, notwithstanding the existence of this obligation, in the “absence of … concurrent liability on the part of RTA” (RFJ at para. 651), the trial judge appears to have considered himself without the authority to craft a declaration that particularized any specific duties borne by government. On this point, we find that he erred in principle, and this error had a material impact on the scope of the declaration that he issued, as well as its practical utility.

[405]   At law, and in light of his findings, the trial judge was not limited to a bare declaratory judgment that simply identified the appellants’ right to fish and recognized a generic obligation to protect that right. Rather, in our view, it was open to him to grant a declaration with greater specificity as to how Canada and British Columbia are to give effect to this obligation. Specificity is preferred because broad declarations are likely to serve little purpose where they do not translate into substantive change (Ahousaht at para. 154; Daniels at paras. 52–57).

[406]   In Desautel, the Supreme Court of Canada reiterated that the Crown has a “special relationship” with Aboriginal peoples. This relationship engages “the honour of the Crown”; a foundational principle that requires “Aboriginal rights [to] be determined and respected, and may require the Crown to consult and accommodate while the negotiation process continues … It also requires that the Crown act diligently to fulfill its constitutional obligations to Aboriginal peoples” (Desautel at para. 30, internal references omitted).

[407]   The relationship between the Crown and Aboriginal peoples is sui generis (in other words, unique), and fiduciary in nature. See, for example, the discussions in R. v. Van der Peet, [1996] 2 S.C.R. 507 at paras. 23–25, 1996 CanLII 216, and Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at paras. 37–40.

[408]   However, not every aspect of the relationship is fiduciary (Southwind v. Canada, 2021 SCC 28 at para. 61). The honour of the Crown may impose specific duties on government in the context of its relationship with Aboriginal peoples. And, some of those duties may properly be characterized as fiduciary duties. However, the duties that flow from the honour of the Crown (whether fiduciary or non-fiduciary), do “not exist at large”; instead, they arise in relation to “specific [Aboriginal] interests” (Wewaykum Indian Band v. Canada, 2002 SCC 79 at paras. 81–85 [Wewaykum]). Moreover, what a particular duty will entail when it does arise, is necessarily informed by the context: “What the honour of the Crown requires varies with the circumstances” (Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 at para. 25 [Taku]).

[409]   As one example, it is now well-established that prior to Aboriginal title or an Aboriginal right being determined, the honour of the Crown imposes a duty on government to consult with Aboriginal peoples, and, where appropriate, to accommodate their interests. However, the duty to consult and possibly accommodate only arises where government has actual or constructive knowledge of the potential existence of Aboriginal title or a right, and contemplates conduct that carries the potential to adversely affect that right (Desautel at para. 72; Ross River Dena Council v. Yukon, 2020 YKCA 10 at para. 10 [Ross River]; Rio Tinto 2010 at paras. 2, 32–50).

[410]   Once the duty to consult has arisen, the steps government must take in furtherance of that duty will also depend on the circumstances. As explained in Haida:

[411]   In Tsilhqot’in, the Supreme Court of Canada held that where Aboriginal title (or, by logical extension, an Aboriginal right), is no longer pending because it has been established, the duty to consult remains relevant to the assessment of Crown conduct and will be engaged by government “incursions” that carry the potential to adversely impact the right (Tsilhqot’in at para. 88).

[412]   However, in the context of a long-standing project or ongoing activity that impaired an Aboriginal right before the right was established, the post-right duty to consult as discussed in Tsilhqot’in will arise only where the Crown’s present conduct or present decisions raise the potential for a “novel” (new or unusual) adverse effect. The Supreme Court of Canada addressed the latter issue in Rio Tinto 2010:

[413]   We understand that the post-right duty to consult applies to government conduct or decisions that will have an “immediate impact on [the] lands and resources” in question, as well as “strategic, higher level decisions” (Rio Tinto 2010 at para. 44, citing Jack Woodward, Native Law, vol. 1. Toronto: Carswell, 1994 (loose-leaf updated 2010, release 4), at p. 5-41, emphasis omitted).

[414]   In addition, where Aboriginal title or a right has been established, the Crown must “ensure that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982” (Tsilhqot’in at para. 80). This requires that there is both “a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty” that the Crown owes to the Aboriginal group (at para. 80).

[415]   Meeting the latter requirement may require that the Crown “reassess [its] prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty … going forward” (Tsilhqot’in at para. 92).

[416]   The trial judge rejected the appellants’ request to declare (and thereby impose) a fiduciary duty on Canada and British Columbia to mandate certain things of RTA, specific to its operations and abatement of the nuisance. However, he recognized that because of his factual and legal findings in resolving the nuisance claim, both levels of government would bear a prospective obligation to protect the appellants’ right to fish. Although he did not delineate specific duties in his declaration, the trial judge opined that this obligation would entail consulting on “future matters affecting [the appellants’] interests, including the river flow”, and reassessing governments’ prior conduct, perhaps even to the extent of considering “legislative change” (RFJ at para. 589; see also para. 604).

[417]   We agree with the trial judge that his determination of an established Aboriginal right to fish in the Nechako River watershed imposes, prospectively, a positive obligation on both levels of government to protect that right. We also agree that Canada and British Columbia are duty-bound to do so in a manner consistent with paras. 77–88 of Tsilhqot’in.

[418]   In our view, this means that Canada and British Columbia each bear a duty to consult with the appellants in respect of the annual water allocation and flow regime in the Nechako River whenever they “contemplate”, individually or collectively, an action or a decision that carries the potential for a novel adverse impact on the appellants’ exercise of their Aboriginal right to fish (Rio Tinto 2010 at para. 49). See also Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124 at paras. 54, 67–74, leave to appeal to SCC ref’d, 37485, (22 June 2017). The purpose of any such consultation would be to protect the established s. 35 right from “irreversible harm” (Rio Tinto 2010 at para. 41).

[419]   In deciding whether a contemplated action or decision carries the potential for a novel adverse impact, Canada and British Columbia are well-advised to keep in mind para. 46 of Rio Tinto 2010, which states that a “generous, purposive approach to this element [of the duty to consult] is in order”. As noted, the trial judge made a specific finding in this case that “while the cause [of the adverse impact on the appellants’ right to fish] may be much the same from year to year (i.e., the regulated flow of the river), the resulting damage (death of fertilized eggs or live fish) occurs anew each and every year” (RFJ at para. 612).

[420]   Canada and British Columbia must also ensure that their continued management of the annual water allocation and flow regime in the Nechako River is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982.

[421]   What this latter obligation requires of government will necessarily be informed by the fact that in their nuisance claim, the appellants established an Aboriginal right, not title to land. This is an important distinguishing factor between the appellants’ case and Tsilhqot’in. In Tsilhqot’in, the fact that Aboriginal title was at stake informed both the assessment of breach of duty by British Columbia and the question of remedy. See, in particular, paras. 89–94 of Tsilhqot’in.

[422]   We are satisfied that the prospective duties identified in this case are properly characterized as fiduciary duties.

[423]   Our reasons for this conclusion are two-fold.

[424]   First, the trial judge found that the appellants proved an Aboriginal right within the meaning of s. 35 of the Constitution Act, 1982. In this context, the “honour of the Crown” is indisputably engaged (Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 69 [Manitoba Métis]). In Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, the majority emphasized that the honour of the Crown is always at stake:

[425]   Second, Haida made clear that “where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty”; the content of that duty may vary to account for the Crown’s other obligations, but fulfilling that duty still requires the Crown “to act with reference to the Aboriginal group’s best interest” (at para. 18, emphasis added).

[426]   See also Southwind, which confirms that a fiduciary duty may arise when “the Crown exercises discretionary control over cognizable Indigenous interests or where the conditions of a private law ad hoc fiduciary relationship are met” (at para. 61, citing Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 44 [Williams Lake]; Manitoba Métis at paras. 48–50; Wewaykum at para. 85).

[427]   The trial judge found, as a fact, that both Canada and British Columbia actively participate as members of the Technical Committee in managing the annual water allocation under the 1987 Settlement Agreement and “setting the flow” regime for the Nechako River (RFJ at para. 531). He also concluded that in these roles and given their governmental authority, generally, Canada and British Columbia retain “some ability to increase the flow of water into the Nechako River” (at para. 590).

[428]   In our view, these findings impliedly hold that the two levels of government have assumed discretionary control over a subject matter in respect of which the appellants have proved an Aboriginal interest. Considered as a whole, this implied finding was open to the trial judge on the record. The appellants also specifically pleaded an assumption of discretionary control as a basis for declaratory relief in their second amended notice of civil claim.

[429]   As the law currently stands, the assumption of discretionary control means that each of Canada and British Columbia has a “strong” fiduciary duty to “act with reference to the [appellants’] best interest” (Haida at para. 18; Southwind at para. 62). The standard of care expected of them is that of “a person of ordinary prudence in managing their own affairs” (Southwind at para. 64, citing Williams Lake at para. 46).

[430]   This does not mean that in the context of their role on the Technical Committee, and in exercise of other authority that reasonably may impact the appellants’ Aboriginal right to fish, Canada and British Columbia must act in the sole interest of the appellants. Aboriginal rights law in Canada recognizes that the content of a fiduciary duty “may vary to take into account the Crown’s other, broader obligations” (Haida at para. 18). See also Wewaykum at paras. 86, 92–93.

[431]   The Supreme Court of Canada explained it this way in Wewaykum (at para. 96):

[432]   We accept that in light of Canada and British Columbia’s “broader obligations” relevant to the Kenney Dam, the related reservoir and the regulation of water in the Nechako River (RFJ at paras. 597–600), it was open to the trial judge to reject the specific terms of the declaration sought by the appellants at the trial. A declaration worded as the appellants suggested would have wholly undercut the authorizing infrastructure surrounding RTA’s operations.

[433]   For one, granting the proposed declaration would have been antithetical to the trial judge’s application of the defence of statutory authority and his conclusion that because of that defence, there was no proper legal basis from which to grant injunctive relief specific to RTA. We agree with RTA that if the proposed declaration had been granted, the appellants would have obtained through the back door the very form of relief against RTA that the trial judge held they were not entitled to in their nuisance claim.

[434]   Second, the declaration sought at the trial, and now on appeal, would, in its practical effect, require a functional revamping of the terms of RTA’s current water licence. This is not the proper role of a court. Judges are not entitled through the auspices of declaratory relief to stand in the shoes of government, usurp its administrative and policy functions, and substantively vary a licence or other form of regulatory authorization that governs a particular operation. This is especially the case where the nature of the decision-making at issue requires scientific expertise, the identification and weighing of potentially myriad competing interests, public safety issues, and intimate familiarity with the contractual, statutory, regulatory and policy framework governing the impugned activity.

[435]   Third, the law is clear that declaratory relief “should normally be declined where there exists an adequate alternative statutory mechanism to resolve the dispute or to protect the rights in question” (Ewert at para. 83). If the appellants wanted to challenge the validity of RTA’s FWL (which incorporates the annual water allocation defined in the 1987 Settlement Agreement), or its terms, the proper course would have been to bring an application for judicial review. In this regard, we find apposite the dissenting comments of Justice Rowe in Ewert, that the courts must be careful to not grant declarations that “would effectively bypass the ordinary process of judicial review” (at para. 127).

[436]   However, these limitations did not preclude the trial judge from asking whether he could craft a declaration against Canada and British Columbia with somewhat greater specificity to offer the appellants a more meaningful form of relief.

[437]   In particular, the trial judge was not precluded from including terms in the declaration that expressly recognize a prospective duty to consult, and to emphasize to Canada and British Columbia the importance of ensuring that their ongoing involvement with RTA, the Kenney Dam and related reservoir is “substantively consistent with the requirements of s. 35 of the Constitution Act, 1982” (Tsilhqot’in at para. 80).

[438]   As noted by Rowe and Shnier at 318, there are cases in which the courts have crafted declarations that bear some resemblance to injunctive relief:

[439]   Declarations that “bear some resemblance to injunctive relief” are occasionally referred to as “declarations plus”. This form of relief “attempt[s] to bridge the gap between declarations and injunctions and combine the benefit of both remedies” (Roach at § 12:10).

[440]   In our view, West Moberly 2011 and Ahousaht, both of which originate from this jurisdiction and are cited by the appellants, reflect a “declarations plus” approach. These cases involved Aboriginal interests and the declarations that were issued were more specific and directive than the one granted by the trial judge in this case.

[441]   In West Moberly 2011, a chambers judge declared that the provincial Crown failed to consult and accommodate Aboriginal hunting rights adequately when authorizing coal exploration in a particular area of British Columbia. The impugned authorization was stayed for 90 days and government was directed, in consultation with the affected First Nations, to “proceed expeditiously to put in place within that period a reasonable, active plan for the protection and augmentation of the Burnt Pine herd…” (West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359 at para. 83).

[442]   On appeal, this Court affirmed the declaration that there was inadequate consultation and accommodation (West Moberly 2011 at para. 166). It set aside the part of the declaration directing that government establish a plan for protecting the caribou herd. However, it directed that implementation of the authority to explore coal be stayed “pending meaningful consultation conducted in accordance with [its] reasons” (at para. 167, emphasis added). Moreover, the stay was granted “without prejudice to the giving of such directions for accommodation following further consultation between the parties, as may appear appropriate” (at para. 168).

[443]   In Ahousaht, the plaintiffs’ Aboriginal right to fish within their fishing territories and to sell that fish was held to include: “[p]roviding predictable and long term fishing opportunities” and “[a]llowing the sale of fish into the commercial marketplace with the opportunity, but not the guarantee, of sustainability and variability” (see the Appendix to Ahousaht). The trial court issued a declaration stipulating that Canada’s “general regulation and management of the regular commercial fisheries”, as well as certain aspects of the scheme, unjustifiably infringed the Aboriginal right (Appendix to Ahousaht).

[444]   The trial court then ordered, consistent with the declaration, that Canada “develop a fishery management plan for accommodating” the plaintiffs’ exercise of their rights to harvest and sell certain species of fish “in a manner that remedie[d] the general and specific findings of unjustified infringement”. Canada was also directed to “offer the [plaintiffs] opportunities to exercise their [A]boriginal rights to harvest and sell” certain species of fish “in a manner that remedie[d] the general and specific findings of unjustified infringement” (see the Appendix to Ahousaht).

[445]   With some modifications, this Court upheld the declaration and ensuing orders on appeal, even though they were directive in nature. The Court did not consider it necessary to make “mandatory orders” against Canada, but acknowledged that this type of an order may be available if Canada did not act diligently to remedy the problems identified by the trial judge (Ahousaht at para. 299). The Court also recognized the potential for future “compensatory orders … should a case be made out for them” (at para. 299).

[446]   For other examples of declarations and associated commentary that were more directive in nature than the one in this case, and considered at the appellate level, see also Restoule at para. 505 and Squamish First Nation v. Canada (Fisheries and Oceans), 2019 FCA 216 at paras. 84–95.

[447]   These cases show that the principles governing declaratory relief are sufficiently broad and flexible to “declare what the constitution requires without descending into great details”, but, at the same time, provide “some means to promote agreement or ensure dispute resolution about the details” (Roach at § 12:13).

[448]   In our view, given the trial judge’s findings about ongoing detrimental impacts of the regulation of the Nechako River’s water flow on the appellants’ Aboriginal right to fish, the effect of those impacts, and governments’ continued role and authority in regulating the water flow, a more specific declaration was necessary, with direction as to how Canada and British Columbia are to exercise their fiduciary duties properly to protect these rights. The trial judge erred in principle by failing to appreciate that he had the authority to do this.

[449]   At the hearing of the appeal, we sought assistance from Canada and British Columbia in crafting more specific wording in the event the Court saw fit to revise the existing declaration. Unfortunately, no suggestions were forthcoming. Instead, both levels of government stood fast in their insistence that there is no proper basis for appellate intervention with the declaration, as currently formulated.

[450]   For ease of reference, we repeat the wording chosen by the trial judge (RFJ at para. 653):

[451]   No one has suggested that the first of these terms, including use of the phrase “Nechako River watershed”, lacks clarity. The Nechako River watershed was defined in the ASF at para. 36. We assume the parties are content with that definition:

[452]   As such, we will leave the first term of the declaration intact.

[453]   However, consistent with the principles discussed by the Supreme Court of Canada in cases such as Haida, Rio Tinto 2010 and Tsilhqot’in, we vary the second term of the declaration to read this way:

[454]   This variation achieves, at least in part, what was requested by the appellants in the proposed declaration they articulated at the trial, namely, consultation specific to governments’ “monitoring [of] and decisions [made]” in managing the flow regime in the Nechako River.

[455]   We will also add a third term to the declaration:

[456]   In our view, this restructured declaration, although still stated in relatively general terms, is more likely to make a practical difference in addressing the ongoing and future cognizable threat to the appellants’ now-established right to fish. Explicitly recognizing a duty to consult when governments’ action or conduct raises the potential for a novel adverse impact makes it clear that both Canada and British Columbia have a positive obligation to take steps, in good faith, that serve to achieve the underlying objectives of that duty when it is properly engaged. Those objectives were highlighted by Justice Rowe in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40:

[457]   Although it is up to Canada and British Columbia to determine how they will meet their duties in the restructured declaration, the Court would expect, at a minimum, that when the duty to consult is properly engaged, it would entail providing the appellants with full opportunity to make submissions to Canada and British Columbia in the context of their role on the Technical Committee about the action or conduct at issue, and the impacts of the continued and future regulation of the Nechako River’s flow regime on their right to fish; reporting back to the appellants to show how the concerns raised by them were considered; and setting out the effects of the consideration on any related decisions (Haida at para. 44).

[458]   According to the ASF, the Technical Committee issues “Decision Records” that capture its decision-making. As such, there appears to be a mechanism already in place through which reporting back to the appellants may appropriately occur.

[459]   When contemplating its duties, it will be important for Canada and British Columbia to keep in mind that “[r]esponsiveness is a key requirement of both consultation and accommodation” (Taku at para. 25, emphasis added). The duty to consult “requires an informed and meaningful opportunity for dialogue with Indigenous groups whose rights may be impacted” (Chippewas SCC at para. 2, emphasis added).

[460]   In Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 [Clyde River], the Supreme Court of Canada affirmed that the content of the duty to consult, once triggered, “falls along a spectrum ranging from limited to deep consultation, depending upon the strength of the Aboriginal claim, and the seriousness of the potential impact on the right” (Clyde River at para. 20). Where an Aboriginal right has been proved, as was the case here, consultation that falls at the “highest end of the spectrum” is generally required (at paras. 43–44). See also Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at paras. 79–81.

[461]   In light of this reality, Canada and British Columbia may wish to consider whether, even without a triggered post-right duty to consult, it would nonetheless be fruitful to facilitate and establish some form of regular consultation with the appellants on the continued and future regulation of the Nechako River. Given the findings made by the trial judge in this case, we are of the view that taking that step would be consistent with the principle of reconciliation.

[462]   In sum, the appeal is allowed in part, solely with respect to the declaratory relief against Canada and British Columbia. The trial judge’s order for declaratory relief is varied as follows:

[463]   The remaining grounds of appeal are dismissed.

[464]   The appellants and RTA have had divided success in advancing and responding to the issues raised on appeal. In the circumstances, we order that each party shall bear their own costs in the appeal.

[465]   We thank counsel for their able submissions.