Court rejects First Nations' bid to change flow of river to alleviate damage caused by northern B.C. dam

·5 min read
Flooding on the Nechako in 2007. First Nations' members blamed Rio Tinto Alcan, which controls water levels from the Kenney Dam. They have lost a lawsuit aimed at forcing the company to change the flow of the river. (Cheslatta Carrier Nation/Contributed  - image credit)
Flooding on the Nechako in 2007. First Nations' members blamed Rio Tinto Alcan, which controls water levels from the Kenney Dam. They have lost a lawsuit aimed at forcing the company to change the flow of the river. (Cheslatta Carrier Nation/Contributed - image credit)

A B.C. judge has rejected a bid by two First Nations to force Rio Tinto Alcan to change the flow of a river to benefit fish stocks decimated by the construction of a dam on the Nechako river.

The Saik'uz and Stellat'en First Nations wanted B.C. Supreme Court Justice Nigel Kent to make the order — which would have been a first for a Canadian judge.

But while Kent found there was no doubt the Kenney Dam's impact on white sturgeon and salmon populations had "hugely negative impacts" on Indigenous communities, he said Rio Tinto Alcan complied with plans approved by both provincial and federal governments — giving the company a valid defence against claims for damages.

On its face, the decision represents a loss, but Kent's rulings contained two significant silver linings for the plaintiffs.

The judge said the provincial and federal governments have an obligation to protect the Aboriginal fishing rights of the Saik'uz and Stellat'en.

And in a finding that could have wide-ranging impacts, the judge also said First Nations have legitimate claims for damages against companies and individuals for damages stemming from breaches of Aboriginal rights.

Maegan Giltrow, who led the legal team for the First Nations, says that part of the decision is significant.

"It's the first case where a claim has been brought based upon Aboriginal rights seeking to claim against harm being done by a third party," Giltrow told the CBC in an interview.

"And it's very significant that the court found that as a matter of law, interference with Aboriginal rights by a third party can be the basis for a common law action against that party. So it means that Aboriginal rights aren't only to be litigated against government."

3rd parties not 'immunized' from lawsuits

The 222-page decision came more than a decade after the Saik'uz and Stellat'en First Nations first filed their claim in B.C. Supreme Court.

The trial lasted 189 days and included 3,000 pages of written arguments and a helicopter tour by judge and counsel of the Nechako River, the Kenney Dam and the affected waterways.

Betsy Trumpener/CBC
Betsy Trumpener/CBC

The Nechako River is one of the largest tributaries to the Fraser River. Before the Kenney Dam's construction, the river's headwaters flowed through a chain of lakes and rivers before meeting the Fraser in Prince George.

The dam created a 233 kilometre-long reservoir that Kent said had a "dramatic" impact on the Nechako and its fish stocks, diverting a huge amount of water away from the watershed.

Rio Tinto Alcan argued that "the construction of the Dam and operation of the reservoir were explicitly and validly authorized by the government" and that in any case, claims of diminished fish stocks were "nothing more than speculation."

The company also argued that private, non-governmental parties cannot be sued over alleged breaches of Aboriginal rights.

But Kent disagreed.

"For sure, the constitutional status of those rights imposes limitations upon and could trigger duties to consult and accommodate by the provincial and federal governments," the judge wrote.

"But this does not mean that third parties, whether corporate entities such as [Rio Tinto Alcan] or individuals, are somehow immunized from tort liability for claims founded on Aboriginal interests."

'A mere shadow of its former abundance'

The judge heard from numerous experts on the decline of fish populations and the role of climate change, pollution and the dam in raising water temperatures and impacting fish stocks.

He concluded that the Kenney dam "caused or contributed to a substantial decline in the population of both Nechako White Sturgeon and sockeye salmon to the extent that the former is at risk of extinction and the fishery of the latter has become a mere shadow of its former abundance."

B.C. Supreme Court
B.C. Supreme Court

But he said the Crown "expressly authorized the construction of the Kenney Dam and the related reservoir" and that Rio Tinto Alcan "strictly complied" with the terms of its water licence and contracts with the Crown.

That gave the company the ability to successfully argue a defence of "statutory authority."

"If Rio Tinto Alcan had in some way exceeded the authorizations, then the plaintiffs' claim in nuisance could have succeeded," Kent wrote.

While he refused to issue an order to alter the flow of the river, the judge did recognize the Aboriginal rights of the Saik'uz and Stellat'en to fish in the Nechako River watershed.

Crucially, he also said the provincial and federal government have an obligation to protect that right — another silver lining to the overall loss and a declaration Kent said may be of "considerable benefit" to the First Nations in the future.

The judge said the Saik'uz and Stellat'en may "well be entitled to substantial compensation for the historic harm caused to their Aboriginal interests in this particular case" — but noted that they didn't sue the Crown for damages.

"No such claim is made," the judge said.

"But the findings of Aboriginal rights in this case may trigger an obligation on the part of the Crown to reassess their conduct 'in light of the new reality.' So too might Rio Tinto Alcan consider such a reassessment to be prudent."

'Putting more pressure on Canada'

In an interview, Saik'uz Chief Priscilla Mueller said she was disappointed the judge didn't order a restoration of the flow of the river, but said she still saw the ruling as a victory, given the judge's findings on the Crown's obligations.

"For Justice Kent to say it right out, there's no hesitation, we have our Aboriginal right to fish," Mueller said.

"I think there is a way forward, but the federal government has to step up here. They have an obligation to protect our rights and our title, and we definitely will be putting more pressure on Canada in our talks with Rio Tinto Alcan."

In a statement, a company spokesperson said Rio Tinto Alcan remains "fully committed" to working with the First Nations.

"Improving the health of the Nechako River is a goal we all share and we are actively engaged with First Nations communities on this priority," the spokesperson said.

"We will continue to collaborate with First Nations, governments and other stakeholders to review all aspects of the Nechako Reservoir management process."

It is not clear yet if any of the parties will appeal.

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