| Summary: | Attempts to use the common law tort of public nuisance to protect the natural environment have generally been frustrated by the judicial rule that such a claim can only be brought by the Attorney General, his or her designate, or someone who has suffered a special harm from a public nuisance. Recent developments in Aboriginal law, however, present a number of compelling reasons to re-evaluate this rule of public nuisance standing. Assuming that these arguments are successful, a First Nation might choose to assert a claim in public nuisance as a less complex alternative to rights and title litigation, or as a means of avoiding the political controversy that might be generated by a title- or rights-based claim (for example, a claim in respect of private land). The arguments in favour of First Nations public nuisance standing are three-fold. First, since the honour of the Crown is at stake in dealings with Canada's First Nations, the Attorney General may not be entitled to decline a First Nation permission to bring a claim in public nuisance. Second, since Aboriginal rights are defined in terms of activities which are “inherent” to the culture of the First Nation, any public nuisance which does or is likely to have a direct or indirect impact on those rights will, almost by definition, affect the First Nation in a manner different from the rest of the public. This will generally amount to “special harm”, and consequently allow the First Nation to bring a claim in public nuisance. Third, a First Nation's own laws and rules governing who may speak for the nation and its public may provide standing to bring a claim in public nuisance. Taking these arguments together, it is likely that a First Nation will be able to establish standing to bring a claim in public nuisance related to environmental harm within its territory. They also represent a compelling reason to re-examine the public nuisance standing rule more generally.
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