LandKeepers News Archive
First nations win court fight over major B.C. power projects
February 18 2009 | News Articles | Victoria Times Colonist
First nations win court fight over major B.C. power projects
By Neal Hall, Canwest News Service
February 18, 2009
VANCOUVER – The B.C. Court of Appeal has issued two major rulings upholding the rights of first nations to be consulted by the government, which will affect two major projects in B.C.
In one case, the court has struck down a licence required to build a massive new hydro transmission line from Merrit to Coquitlam because native Indians were not consulted.
In the other case, the court ruled there was “massive” infringement of the right of the Carrier Sekani Tribal Council to be consulted in the Kemano Power Project and later expansion near Kitimat that involves B.C. Hydro buying electricity from the Rio Tinto Alcan Inc. aluminum smelter.
The appeal court granted the appeal of the tribal council and found that the BC Utilities Commission erred in approving the Electricity Purchase Agreement (EPA) between BC Hydro and Rio Tinto Alcan in January 2008.
The court found “B.C. Hydro, as a Crown corporation, was taking commercial advantage of an assumed infringement on a massive scale, without consultation.”
The court was also critical of the BC Utilities Commission, finding “the commission has demonstrated in several cases an aversion to assessing the adequacy of consultation.”
“I think this is a very significant decision both for the Kemano project itself and also for aboriginal rights,” said Vancouver lawyer Gregory McDade, who represented native bands in both cases.
Tribal Chief David Luggi was pleased by the appeal court victory.
“We are pleased that the Court of Appeal has recognized in law that First Nations interests must be taken into account in important decisions relating to the Kemano Project,” he said in a statement.
“The Alcan Kemano Project remains the most devastating environmental impact in our region.”
“First Nations were never consulted when the Kemano Project was built, and we were not involved in the backroom deal in the 1987 Settlement Agreement, by which flows in the Nechako River were reduced by over 70 per cent. Our fisheries have never recovered, and the Nechako Sturgeon is endangered and almost extinct.”
He said this was the first step “to ensure that the environment and First Nations interests are not ignored over long-term electricity sales.”
The Kemano project, which began in the 1940s, involved reversing the flow of a river and the creation of a watershed that discharges west into a long tunnel through a mountain down to sea level at Kemano where it drives the generators at the power station and then flows into the Kemano River.
Up to 80 per cent of the natural water flow of the Nechako River was diverted for the project, which affected fish and wildlife, especially salmon.
The Nechako River eventually joins the Fraser River at Prince George.
Alcan holds a water licence in perpetuity for the reservoir. It is obliged by the licence and an agreement made in 1987 settling litigation involving the provincial and federal governments to maintain water flows that meet specifications for migratory fish.
In the course of an expansion project, often referred to as Kemano II, the B.C. government changed its mind about allowing the full utilization of the reservoir, which shut down the project and prompted a lawsuit by Alcan.
The legal action was settled in 1997 on terms which included a power deal whereby the province would supply Alcan should it enlarge the smelter and need more electricity.
The settlement also granted Alcan the water licence on a permanent basis. But there was no consultation with native Indian bands in the area.
“My clients rely on the fishery and they have been ignored for 50 years on this,” McDade said in an interview. “This potentially has a huge environmental impact on the Nechako and the Fraser,” he said.
He pointed out that scientists believe diverting up to 80 per cent of the Nechako River has increased the temperature of the Fraser, which has affected salmon returning upstream in the summer.
“When the Fraser gets up to 20 degrees, fish begin to die,” McDade said. “Even half a degree can make a big difference.”
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