B.C. court rejects First Nations’ petition, but finds fishing rights were violated

VANCOUVER - A British Columbia Supreme Court docket decide has rejected a petition from two First Nations that requested for an injunction to pressure the restoration of pure flows of the Nechako River, which has been diverted for 70 years to generate hydroelectricity.

Justice Nigel Kent says in a written determination the Crown licensed the development of the Kenney Dam, accomplished within the Nineteen Fifties, together with the diversion of water to energy a smelter run by Rio Tinto Alcan, the mining large’s aluminum division.

Kent says the corporate has “strictly complied” with the phrases of its water license and associated contracts with the Crown, and Rio Tinto shouldn't be obligated to vary the way it manages the river in B.C.’s central Inside if it abides bythose authorizations.

On the similar time, Kent discovered that operation of the dam and reservoir has “precipitated or contributed to a considerable decline” in native sturgeon and salmon populations, negatively impacting the Saik’uz and Stellat’en First Nations’ proper to fish.

Kent concluded that the provincial and federal governments have an obligation to guard the First Nations’ Aboriginal proper and wrote that the findings within the decade-long case “could set off an obligation on the a part of the Crown to reassess their conduct.”

He famous within the determination dated Friday that the plaintiffs,who filed the petition in 2011,“might be entitled to substantial compensation for the historic hurt precipitated to their Aboriginal pursuits,” however no such claimwas made towards the Crown.

The decide additionally discovered that non-governmental third events, “whether or not company entities akin to (Rio Tinto Alcan) or people” are usually not “immunized” from potential legal responsibility claims based on alleged breaches of Aboriginal pursuits.

The federal Division of Crown-Indigenous Relations and B.C.’s Ministry of Indigenous Relations Relations and Reconciliation didn't instantly reply to requests for touch upon the ruling.

Requested in regards to the determination, a spokesperson for Rio Tinto mentioned the corporate “believes that governance of the flows on the Nechako River needs to be an inclusive course of.”

“Enhancing the well being of the Nechako River is a purpose all of us share, and we're actively engaged with First Nations communities on this precedence,” the assertion mentioned.

Rio Tino is “absolutely dedicated to working with the Saik’uz, Stellat’en Nations and different First Nations within the watershed to construct mutually useful, respectful and clear relationships in a spirit of reconciliation,” the spokesperson added.

The circulation of the river is regulated by a 1987 settlement between the federal and provincial governments and the corporate, which periodically releases water from the reservoir of the Kenney dam to supply hydropower to its aluminum smelter in Kitimat. It has additionally offered energy to the province since 1978.

TheSaik’uz, Stellat’en and the Nadleh Whuten nations signed a memorandum of understanding with the Regional District of Bulkley-Nechako final fall, which says restoring the well being of the river requires that the 1987 settlement get replaced.

It requires a brand new settlement that may guarantee a extra pure circulation for the river and embody native stakeholders, together with the regional district and First Nations.

Saik’uz Chief Priscilla Mueller mentioned Monday she was saddened that the courtroom didn’t grant an injunction order to revive the river’s circulation, however she’s hopeful that the ruling will convey the federal and provincial governments to the negotiating desk.

“We’re constructing a very good relationship with the regional district and we're sitting down, we’re constructing a relationship with Rio Tinto, and we’ve by no means had that earlier than prior to now. We’re going to maintain on shifting ahead and do one of the best to attempt to restore the well being of the river,” she mentioned in an interview.

This report by The Canadian Press was first printed Jan. 10, 2021.