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

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."

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.

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."