Northern First Nations call for ‘seat at table’ as BC mulls court appeal

Written By Fran Yanor

While the B.C. government considers whether to appeal a court decision recognizing two nations’ Aboriginal right to fish in a damaged river and the province’s fiduciary obligation to protect that right, the communities behind the lawsuit call on governments and industry to work with them to improve the health of the watershed.

“Now that the court is saying that Canada has that duty to protect that [Aboriginal right to fish], we’re hoping that we can work with Canada and British Columbia to look at ways that we can improve the health of the Nechako River,” Saik’uz chief Priscilla Mueller told Northern Beat

The Feb. 26 BC Court of Appeal decision recognized that Saik’uz and Stellat’en nations have the constitutionally-protected right to fish in the Nechako River for food, social and ceremonial purposes and the provincial and federal governments have a duty to consult the nations on prospective negative changes to the water flow. Previously, the court acknowledged environmental harms had occurred that had impeded Saik’uz and Stellat’en in exercising that right to fish, and last week’s ruling called on the federal and provincial governments to protect those Aboriginal interests. 

“We’ve been working to try to improve the health of the river. It’s been a big, huge battle for us,” said Mueller. 

In their appeal, the nations asked the court to direct the two levels of governments to follow through with specific measures to meet their fiduciary obligations, otherwise “there will be no substantive change to the situation involving the Nechako River and the detrimental impacts on the watershed” and the nations’ protected interests.

The BC Court of Appeal declared both the federal and provincial governments have a fiduciary duty to protect the nations’ established Aboriginal right to fish by consulting them “whenever governments’ action or conduct in managing the annual water allocation and flow regime for the Nechako River, pursuant to Rio Tinto Alcan Inc.’s water licences and agreements, raises the potential for a novel adverse impact on the right.”

“… both the federal and provincial governments have a fiduciary duty to protect the plaintiffs’ established Aboriginal right to fish…”

BC Court of Appeal

The court didn’t stipulate exactly how the provincial and federal governments should meet their duty to consult, but stated at minimum, they should allow the nations to make submissions about relevant actions and impacts related to “continued and future regulation of the Nechako River’s flow regime on their right to fish.” Governments were also advised to report back to Saik’uz and Stellat’en on the effects of their consultation on subsequent river management decisions.

B.C. Attorney General Niki Sharma declined a request for an interview and a subsequent email from her ministry indicated the province was reviewing the decision and would not say whether government would appeal. 

Nechako Reservoir flooded chain of lakes and rivers

In the 1950s, Alcan built the Kenny Dam to power a massive aluminum smelter near Kitimat. With the approval of the then federal and provincial governments, the company created the 233-km-long Nechako Reservoir by flooding a chain of lakes and rivers. Some First Nations communities were displaced, their way of life obliterated, and the natural environment was completely altered.

Since then, the dramatic rise and drop of the reservoir has wreaked havoc on fish, wildlife, and water quality. 

Remains of a forest: Submerged trees in the Nechako Reservoir. [Mike Robertson, Cheslatta Carrier Nation]

“At certain times of the year, it’s devastating to see the damage done to that river,” Mueller said.

Rio Tinto Alcan ‘immune’ but Aboriginal rights recognized

This week’s decision and the previous 2022 ruling concluded that while third parties such as industry could be held liable for damages from development, Rio Tinto Alcan was immune because it had had statutory approval and had met all regulatory standards in the construction and operation of the dam. Rio Tinto owned the dam until 2007, when Alcan bought it.

Previously, “the Court urged both the Crown and Rio Tinto to consider a “reassessment” of their conduct “in light of the new reality,” according to a summary by Bennett Jones law firm of the 2022 court decision that this week’s case appealed. “All companies should assess their operations and conduct and be diligent in designing and managing their operations and developments to respect Aboriginal rights.” 

The Kenny dam backstops the Nechako Reservoir. [Photo Nechako Lodge]

The court appeal from this week rejected the argument by the nations for Rio Tinto Alcan to be held legally liable, but it did heed the nations’ request to direct the upper levels of governments to follow through on certain measures. So, while Saik’uz and Stellat’en didn’t win everything they were after, they’re grateful for the court’s recognition of that right and now want to get going on repairing some of the environmental damage their communities have been living with for decades.

‘We want a seat at the table’

“There’s different things that can happen to improve the river and the flow of the river,” said Mueller. “But really, it comes down to, we want to be able to have a seat at the table, so we can manage those flows together with Rio Tinto Alcan, with the province, and with the nations.”

The Nechako Reservoir is 233-km-long and larger than the entire Lower Mainland.

[Map by Michael Cranny]

The nations want the province to pull Rio Tinto to the table and direct them to work with the nations “to see what is going to be the best flows for the river. Not just the best flows for Rio Tinto Alcan, but what are going to be the best flows for the river?”

Saik’uz wants the provincial and federal governments there too. 

“We want their support, I guess that’s what we’re looking for more than anything. There’s just been so much work that’s been done, and there are things that we could do to improve that river, and we want the province to kind of stand beside us,” she said.

“We want the province to kind of stand beside us.”

Priscilla Mueller

Rio Tinto has been working with some First Nations in the area for several years. In 2020, the mining conglomerate signed an agreement with Cheslatta Carrier Nation to support stewardship initiatives and protect water levels in the Nechako River. A year later, the company signed an MOU with several nations and the Regional District of Bulkley-Nechako, committing to rehabilitate the Nechako River. 

A written statement from Rio Tinto said improving the health of the Nechako was a goal it shared and affirmed the company’s commitment to work with the Saik’uz, Stellat’en, and other affected First Nations “to build mutually beneficial, respectful and transparent relationships in a spirit of reconciliation.”

The company stated that governance of the flows on the Nechako River should be an inclusive process. “We will continue to collaborate with First Nations, governments and other stakeholders in the watershed regarding the Nechako Reservoir management process.”

Repairing harms, restoring health

One of the primary goals for all the nations is to improve Nechako River habitat for sturgeon and sockeye salmon, both of which used to be abundant. The populations of both species are now so low local community members haven’t been able to fish them in years.

“When I was a little girl growing up, there was plenty and now there’s hardly anything in that river,” Mueller said. “We [now] have to buy fish like a salmon to bring it into our community, which is very, very sad because … we were always able to just go to the river and fish.”

The good news is that through the years, the Nechako River and its fish inhabitants have been studied extensively. The detrimental effects of the dam and reservoir’s fluctuating water levels are well known, as are the many strategies to potentially repair some of the harms. 

“We have a lot of good ideas,” said Mueller. “If we can leave a nice river for our great, great grandchildren then, we’ve done something good.”