Private Law Theory

ABSTRACT
A nuisance is an unreasonable interference with a plaintiff’s use and enjoyment of land in a way that is consistent with the nature of their interest in it. In Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc the British Columbia Court of Appeal determined that Aboriginal title and certain site-specific Aboriginal rights to fish were sufficient, as proprietary interests, to ground an action in nuisance. This decision has significant implications with respect to First Nations and private entities engaged in resource use and extraction in Canada. The decision also has implications for nuisance doctrine. Consideration of the plaintiff’s interest in land is generally dispatched quickly with reference to the established list of recognised proprietary interests (as a question of standing). By foregrounding the nature of the plaintiff’s interest in land within the nuisance analysis, Thomas illustrates how the un/reasonableness of an interference depends in part on the character of the right in question. In relation to Aboriginal rights in land, this includes a special weight or ‘thickness’ by reason of deep connection to culture and identity, in addition to constitutional protection.

Hall, Margaret Isabel, The Categories of Nuisance Are Not Closed: Developing a Canadian Law of Nuisance (April 24, 2025).