The B.C. Supreme Court has ruled that Rio Tinto Alcan’s Kenney Dam has caused significant harm to the Nechako River, but rejected the request of local First Nations to restore the river’s flow to previous levels.
The Saik’uz and Stellat’en First Nations have maintained for years that Rio Tinto Alcan’s activities have harmed their fisheries and their traditional way of life.
“We are pleased that the Court has recognized how important the river and its resources are to our community and our culture,” Saik’uz councillor Jackie Thomas, the named plaintiff for Saik’uz and Chief when the case was initially brought in 2011.
“We’re grateful to the community members who testified at trial as well as the generations before us who have long fought to protect the Nechako.”
Justice Nigel Kent found that the Kenney Dam’s operations have caused a substantial decline in the population of Nechako White Sturgeon and sockeye salmon.
Kent wrote that the dam has had a dramatic impact on the Nechako River and altered the natural hydrograph to the extent that the operations infringed on the Aboriginal rights of Saik’uz and Stellat’en to fish the Nechako watershed for food, social, and ceremonial purposes.
Rio Tinto Alcan vigorously defended itself from liability, arguing that the project was approved by federal and provincial regulators when it was constructed in the 1950s. They contend that they have strictly complied with water release requirements and any negative impacts on the Nechako are the result of the regulations.
The Court agreed with Rio Tinto Alcan’s defence and ruled that they cannot be held responsible. However, the Court did stipulate that both the federal and provincial governments have an obligation to protect the Saik’uz and Stellat’en’s right to fish by taking all appropriate steps to protect fish in the Nechako River.
Rio Tinto Alcan attempted to argue that third-party groups should be shielded from lawsuits over Aboriginal rights and title, 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 who, unlike RTA, also have obligations to the plaintiffs arising from the honour of the Crown and the law of fiduciary obligations,” Kent wrote.
“But this does not mean that third parties, whether corporate entities such as RTA or individuals are somehow immunized from tort liability for claims founded on Aboriginal interests.”
Saik’uz Chief Priscilla Mueller said she’s disappointed that Rio Tinto will be not be directly required to restore the flow of the river but glad the court recognized the government’s obligation to protect fishing rights.
Muller called on Rio Tinto Alcan and both levels of government to work quickly and collaboratively to improve the health of the Nechako River.
“Rio Tinto remains fully committed to working with the Saik’uz, Stellat’en Nations and other First Nations in the watershed to build mutually beneficial, respectful and transparent relationships in a spirit of reconciliation,” Rio Tinto said in a statement.
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