B.C. court says First Nations may be entitled to ‘substantial compensation’ for lost fishing rights

In the same ruling, Justice Nigel Kent dismissed a request to have the company fix the Nechacko River.

A British Columbia Supreme Court judge says the Saik’uz and Stellat’en First Nations may be entitled to “substantial compensation” after their right to fish was impacted by a dam and reservoir built in the 1950s.

In a ruling handed down Friday, Justice Nigel Kent ruled that that the operation of the Kenney Dam and reservoir has “caused or contributed to a substantial decline” in local sturgeon and salmon populations, negatively impacting the Saik’uz and Stellat’en First Nations’ right to fish.

Kent noted in the decision that the plaintiffs, who filed the petition in 2011, “may well be entitled to substantial compensation for the historic harm caused to their Aboriginal interests,” but no such claim was made against the Crown.

The judge also found that non-governmental third parties, “whether corporate entities such as (Rio Tinto Alcan) or individuals” are not “immunized” from potential liability claims founded on alleged breaches of Aboriginal interests.

Jackie Thomas was the lead plaintiff and the Saik’uz chief councillor at the time the case was brought against mining giant Rio Tinto in 2011.

“That dam has had a major impact on those fish in our river, yes, that was very important,” she says. “We don’t have to argue about it anymore and spend energy on that question.”

In 1952, the Kenney Dam was built by Alcan (now owned by Rio Tinto) to power an aluminum smelter in Kitimat.

The large rock-filled Nechacko reservoir diverts the water to a power station owned by Rio Tinto.

Thomas says the company filled and dam and cut off flow to the river.

“There was actually no water from a number of years, there was no Nechako river, everything was filling the reservoir for what I think it took two and a half or three years to fill,” says Thomas.

The nations were also seeking an order to have Rio Tinto restore the original flow to the Nechako River – but Kent rejected the petition.

He says in his written decision the Crown authorized the construction of the Kenney Dam, completed in the 1950s, along with the diversion of water to power a smelter run by Rio Tinto Alcan, the mining giant’s aluminum division.

Kent says the company has “strictly complied” with the terms of its water license and related contracts with the Crown, and Rio Tinto is not obligated to change how it manages the river in B.C.’s central Interior if it abides by those authorizations.

At the same time, Kent concluded that the provincial and federal governments have an obligation to protect the First Nations’ Aboriginal right and wrote that the findings in the decade-long case “may trigger an obligation on the part of the Crown to reassess their conduct.”

The federal Department of Crown-Indigenous Relations and B.C.’s Ministry of Indigenous Relations Relations and Reconciliation did not immediately respond to requests for comment on the ruling.

Asked about the decision, a spokesperson for Rio Tinto said the company “believes that governance of the flows on the Nechako River should be an inclusive process.”

“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 statement said.

Rio Tino is “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,” the spokesperson added.

The flow of the river is regulated by a 1987 agreement between the federal and provincial governments and the company, which periodically releases water from the reservoir of the Kenney dam to provide hydropower to its aluminum smelter in Kitimat. It has also sold power to the province since 1978.

The Saik’uz, Stellat’en and the Nadleh Whuten nations signed a memorandum of understanding with the Regional District of Bulkley-Nechako last fall, which says restoring the health of the river requires that the 1987 agreement be replaced.

It calls for a new agreement that would ensure a more natural flow for the river and include local stakeholders, including the regional district and First Nations.

Saik’uz Chief Priscilla Mueller said Monday she was saddened that the court didn’t grant an injunction order to restore the river’s flow, but she’s hopeful that the ruling will bring the federal and provincial governments to the negotiating table.

“We’re building a really good relationship with the regional district and we are sitting down, we’re building a relationship with Rio Tinto, and we’ve never had that before in the past. We’re going to keep on moving forward and do the best to try to restore the health of the river,” she said in an interview.

With files from the Canadian Press

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