First Nations praise ruling 'forcing' Crown to protect interests

For decades, Stellat’en Chief Robert Michell says his First Nation has been caught in a loop of frustration when demanding change to deal with problems caused by the Kenney Dam.

The company which operates both the dam and an associated reservoir that has literally changed the flow of the Nechako River in B.C.’s north says it has done everything the government requires.

And the government says management of the dam is the company’s responsibility.

Michell says a victory at B.C.’s Court of Appeal this week could change that dynamic for good: forcing the Crown to deal directly with the interests of two First Nations that have been fighting for years to undo the Kenney Dam’s damage to their fish stocks.

“The problem is that we were always dealing with Rio Tinto — a company — and their bottom line is water is where they make their profit through electricity sales,” Michell told the CBC.

“This drags the provincial and federal government into the room to have these discussions, because a lot of the stuff we need is from the provincial and federal governments … If anything, that’s the big win, is it’s forcing them to come to the negotiating table.”

‘An obligation to protect’

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, B.C., about 517 kilometres north of Vancouver.

The dam created a 233-kilometre-long reservoir, courts agree, diverting a huge amount of water away from the watershed and damaging fish stocks in the process.

The Nechako River, in the heart of the nation’s traditional territory, was severely affected when the Kenney Dam was built in 1954 to power Rio Tinto’s smelter in Kitimat, B.C.

On its surface the unanimous Court of Appeal decision released Monday was only a partial victory for the Stellat’en and Saik’uz First Nations, who had also been suing for damages against Rio Tinto Alcan and an order reversing the flow of the Nechako.

But while B.C.’s top court sided with a lower court decision rejecting a nuisance claim against the company, the appeal court judges added wording to a declaration of the Crown’s responsibilities towards the Stellat’en and Saik’uz likely to see them reach their objectives all the same.

‘At risk of extinction’

At the B.C. Supreme Court level, Justice Nigel Kent said only that the First Nations have an Aboriginal right to fish for food, social and ceremonial purposes in the Nechako and the federal and provincial Crown “have an obligation to protect that Aboriginal right.”

The appeal court judges said Kent should have gone further — especially after finding the dam reduced stocks of 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.”

“Given the trial judge’s findings about ongoing detrimental impacts of the regulation of the Nechako River’s water flow on the appellants’ Aboriginal right to fish, the effect of those impacts, and governments’ continued role and authority in regulating the water flow, a more specific declaration was necessary,” the appeal court judges wrote.

They added two paragraphs to Kent’s so-called statement of ‘declaratory relief’ — a legal term outlining the rights of the parties.

Both concern the ‘fiduciary duty’ the Crown has toward the Stellat’en and Saik’uz — another legal term which basically translates to a need to act solely in the best interests of another party.

Bearing that in mind, the appeal court ruling says the federal and provincial governments must consult the First Nations “whenever governments’ action or conduct in managing the annual water allocation and flow regime” threatens damage.

The judgment says the Crown also has to ensure the management of the Nechako’s flow is in line with Aboriginal treaty rights guaranteed by the Constitution.

‘A slow but consistent turnaround’

The Appeal Court decision is more than 100 pages. The Supreme Court decision was twice that long — involving 189 days of trial, 3,000 pages of written arguments and helicopter tour by judge and counsel of the Nechako River, the Kenney Dam and the affected waterways.

At both levels of court, Rio Tinto Alcan successfully argued that the company had a valid defence against claims for damages because the company complied with plans approved by both the federal and provincial governments.

The appeal court gave a partial victory to the First Nations suing over damage from the Kenney Dam. But the ruling could accomplish their goals all the same.

But even that loss had a landmark silver lining for First Nations — establishing that they do have the right to sue for damages against companies and individuals stemming from breaches of Aboriginal rights.

Underlying all arguments is what Michell describes as an attempt to make companies and governments place moral obligations above profit when it comes to resources drawn from land where First Nations have an interest.

“There’s been a bit of a slow but consistent turnaround on how courts are viewing corporations’ relationship with government,” he told CBC.

Michell said the Crown can’t just hand out licences to companies, issue permits and “hope for the best” when it comes to the way they deal with First Nations.

“You’re actually hinged onto that licence now and you as a government have to make sure that the Aboriginal rights and title of that particular First Nation is protected as part of your fiduciary responsibility. So that’s the big part that we like about it.”

In a statement emailed to CBC News early Wednesday evening, a spokesperson for Rio Tinto said the company remains committed to working with the Saik’uz, Stellat’en and other 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. Rio Tinto believes that governance of the flows on the Nechako River should be an inclusive process,” the statement reads.

“The decision recognizes that Rio Tinto has operated within the scope of its licence and that lawful operation of its facilities does not constitute wrongful conduct. It will not affect how we engage with Indigenous Peoples in Canada. Our goal remains to build meaningful relationships based on transparency, trust and respect.”

Michell said the First Nations are considering whether to appeal the parts of the appeal court decision they lost to the Supreme Court of Canada.

Neither the provincial nor the federal Crown have indicated whether they have any plans to appeal to Canada’s top court.