British Columbia First Nations appeal decision on Rio Tinto dam

70 years ago, British Columbia approved a hydroelectric project that would irreversibly alter an entire watershed and forever change the lives of First Nations living along the Nechako River.

The Kenney Dam was built in the early 1950s to supply electricity to a coastal aluminum smelter owned by the Aluminum Company of Canada, now Rio Tinto Alcan. The provincial government at the time was openly and actively courting development through an aptly named law, An Act to Promote the Industrial Development of the Province.

Permits were issued, First Nations communities were removed, construction was completed, and 890 square kilometers were flooded to create the reservoir, reducing the natural flow of the Nechako River by 60-70%.

Decades later, the Saik’uz and Stellat’en First Nations sued Rio Tinto Alcan and the province. They wanted to force the company to restore some of the river’s flow and save what little vital habitat remains for endangered white sturgeon and struggling salmon populations.

After three years of hearings, their case was dismissed by the Supreme Court of British Columbia in January, but that paved the way for an appeal process. The judge asserted that both nations inhabited the land prior to settlement and therefore Saik’uz and Stellat’en members have a “fundamental right to fish in the Nechako watershed for food, social and ceremonial purposes. “. The court also confirmed that the dam and the ongoing provincial regulation of water levels continue to have a direct and negative impact on fish populations. Their appeal was filed at the end of July.

“We’re not going to give up,” former elected Saik’uz leader and current councilor Jackie Thomas told The Narwhal in an interview. She explained how fish provides both food security and spiritual and cultural connections. “We have taken a spiritual blow for 100 years here in BC…I will use any means necessary to ensure that my community gets what we need.”

Thomas, now a grandmother, is one of the named plaintiffs in the case which first went to trial in 2019.

“Honestly, I think I’m third generation on this,” she said. “Before me, there was my uncle and before him, it was my grandmother.”

Members of the Saik’uz and Stellat’en First Nations pose on the steps of the Vancouver courthouse during 189 days of BC Supreme Court hearings into the impacts of the Rio Tinto Alcan hydroelectric plant on the Nechako River watershed. Photo: David Luggi / Handout

A victory for the nations could constitute a “precedent” (lawyer)

It’s clear the government has a legal obligation to protect First Nations’ right to fish, Darwin Hanna, founding partner of the law firm Callison and Hanna and a member of the Nlaka’pamux Nation, told The Narwhal newspaper. The challenge, he said, is not so much to agree that the dam has a continuing impact, but to get the government to do something about it.

“How do you plan for restitution and reconciliation for interference with fisheries, waterways and interference with rights and title?” Hanna said in an interview. “I think it’s going to take a real political shift in how they approach these cases, because it’s really a story of denial, denial, denial.”

Although B.C. Supreme Court Justice Nigel P. Kent dismissed the nations case, he acknowledged the “dark and intractable” legacy of colonization, which includes the project’s approval by the British Columbia. The appeal focuses on how the court’s decision leaves Saik’uz and Stellat’en without a remedy, though Kent agrees with the nations on all the facts at hand.

“After 189 days of trial… the [nations] proved that the diversion of the waters of the Nechako by Alcan is causing a serious decline in the fisheries that their Aboriginal communities have relied on since time immemorial – until the near disappearance of sturgeon and salmon a “mere shadow of its former abundance,” the opening statement of the call notes. “The appellants’ identity, culture and way of life – the very core of what…the Constitution promises to protect – are intertwined and lost in the decline of the fishery.”

According to the nations’ legal adviser, Judge Kent erred in law by not requiring the province to order Rio Tinto to put more water back into the river, despite British Columbia’s constitutional obligation to protect the rights of nations. Kent said if anyone is liable, it’s the Crown, but noted that Rio Tinto operates under provincial permits, so the court cannot hold the company liable for damages. In the same breath, he said that because the court couldn’t tell the company what to do, it was unable to make a “declaration” ordering the province to change the permits.

“This reasoning is internally contradictory,” the appeal notes, pointing to Blueberry River First Nation’s landmark 2021 decision on treaty rights, which included a “declaration that the province cannot continue to allow activities that unjustifiably infringe the treaty right or breach the duties of the Crown. .”

According to the call, this type of statement can also be made for Sai’kuz and Stellat’en.

Hanna said this case could chart the way forward for “all First Nations” who have been similarly impacted by past development, noting that the underlying question is how to “decolonize these industrial complexes.”

“This case sets a precedent, so there is a lot to do,” he said.

Rio Tinto sells excess energy to BC Hydro

Notably, the two neighboring nations are not asking the courts to destroy the dam or restore the river to its original state. Instead, they hope to reach an arrangement in which Rio Tinto works with the province to establish a flow regime that helps restore natural ecological functions.

To that end, Saik’uz and Stellat’en have asked the courts for an injunction against Rio Tinto to ensure that the company regulates water flow in a way that does not continue to impact fishing. downstream.

The hydroelectric facility reverses the water’s natural direction, sending it west via a 16-kilometre tunnel through the coastal mountains to Kemano, where it plunges down a 790-metre precipice to the turbines in waiting. The Kemano plant produces more electricity than Rio Tinto needs to operate its smelter and the company sells its surplus to BC Hydro.

“Why can’t they just put that difference back on this side of the mountain?” Thomas asked.

British Columbia Premier John Horgan at the Rio Tinto Alcan smelter in Kitimat
British Columbia Premier John Horgan visited Rio Tinto Alcan’s smelter in 2017 after the company completed a $5 billion expansion. Photo: Flickr/Province of British Columbia

Rio Tinto told The Narwhal that the Kemano power plant has a capacity of 896 megawatts, around 80% of which is used to power the smelter. BC Hydro data on its agreements with independent power producers indicates that Kemano produces a total of 3,307 gigawatt hours per year, which means it sells about 660,000 megawatt hours to the utility, or about the annual amount of energy consumed by approximately 60,000 households.

Neither BC Hydro nor Rio Tinto would disclose the monetary value of that excess power, which the utility buys under a power purchase agreement established in 2007 and locked in until 2034. According to provincial documents accessible through an open disclosure policy, BC Hydro pays the company between $64 and $88 per megawatt hour. A conservative calculation puts the revenue that Rio Tinto derives from the sale of electricity at more than 45 million dollars per year.

For Thomas, it’s not a question of money, it’s a question of fish.

“Our ecosystem has value, our employees have value. It’s not always about dollars and cents,” she said. “We are not rich, we are not well off people. And we still depend on that hunting, fishing, and gathering – that’s what completes us financially.

The average Saik’uz income is less than half the provincial average, according to 2016 census data. Thomas said the community needs to raise funds through bottle drives and bake sales to cover the travel expenses for members wishing to attend court hearings.

There is an urgent need “to start doing sanitation work now, before we extirpate the last three of the six fish stocks that we have left”, she explained.

“Basically, that’s what it’s all about: trying to save our fish.

In a statement provided to The Narwhal, Rio Tinto said it has contributed $13 million to white sturgeon conservation, through a recovery initiative bringing together federal and provincial biologists, First Nations, industry experts , local and municipal governments and more. The company also said it had committed $50 million to a fund created in the late 1990s as part of an agreement between Rio Tinto and the province.

“Improving the health of the Nechako River is a goal we all share and we are actively engaging with First Nations communities on this priority,” a Rio Tinto spokesperson wrote in an emailed statement. “We will continue to work with First Nations, governments and other stakeholders to review all aspects of the Nechako Reservoir management process.

But Thomas said supporting the company has never been easy.

“They didn’t voluntarily do the right thing – they always had to be forced,” she said. “This company is really good at dividing and conquering. That’s why we can’t get that water over the line, get more water for our river and our sturgeon, our salmon. They are the two main ones right now, but the whole ecosystem needs to be rehabilitated.

“We understand it won’t be the same river because it’s been through 70 years of crazy changes,” she added.

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