Court okays BC Hydro/Rio Tinto Alcan deal

Carrier Sekani compensation ruling signals Supreme Court of Canada permits damages for failure to consult on the Kemano Power Project, while finding no duty to consult on the 2007 BC Hydro-Rio Tinto Alcan deal.

The Supreme Court of Canada has ruled against a native group’s claim that it should have been consulted in connection with a 2007 power deal between BC Hydro and Rio Tinto Alcan.

But the court decision leaves the door open for the Carrier Sekani Tribal Council to seek compensation for not being consulted about the massive industrial project that made the power deal possible – the Kemano Power Project, which dammed the Nechako River, created a massive reservoir and continues to have ripple effects in the region.

“For the first time, the Supreme Court of Canada said you could get compensation on the issue of consultation – or the lack of consultation,” Carrier Sekani tribal chief David Luggi said. “It opened that door for us.”

The Supreme Court on Thursday ruled the British Columbia Utilities Commission, which regulates electricity in the province, where power plant rejections sometimes occur, did not have a duty to consult the Carrier Sekani Tribal Council in connection with a 2007 electricity purchase agreement between BC Hydro and aluminum maker Rio Tinto Alcan.

Since 1961, excess power generated by the dam has been sold by Alcan to BC Hydro under a series of electricity-purchase agreements. The tribal council, which represents eight bands whose traditional territories lie west of Prince George, argued it should be consulted about the 2007 deal. The utilities commission disagreed, saying the agreement would not affect any aboriginal interest or native rights claims.

The fight made its way to the B.C. Court of Appeal where, in February of 2009, it sided with the Carrier Sekani and sent the case back to the utilities commission to consider whether a duty to consult with the Carrier Sekani had ever been met.

The Supreme Court ruling overturned that decision, finding that “the 2007 EPA would have neither physical impacts on the Nechako River or the fishery nor organizational, policy or managerial impacts that might adversely affect the claims or rights of the first nations. The failure to consult on the initial project was an underlying infringement, and was not sufficient to trigger a duty to consult.”

Although disappointing for the Carrier Sekani, the Supreme Court judgment, which makes several references to damages, “creates a new option for first nations in cases where there has been a failure to consult,” said lawyer Gregory McDade, who represented the Carrier Sekani Tribal Council in the case and has been involved in other landmark aboriginal law decisions. “Particularly in cases where there are ongoing infringements that have been approved in the past – the court has said, that’s really your only remedy.”

The Kemano project involves a dam and reservoir that drastically altered the amount and timing of water flowing through the Nechako river. As was the norm at the time, the Carrier Sekani were not consulted when the project was built in the 1950s. Today, they are concerned that water flows are not being managed in a way that protects salmon and, as seen in the Columbia River treaty negotiations, Nechako White Sturgeon, listed as endangered under Canada’s Species at Risk Act.

Eight band chiefs will meet to discuss next steps, including seeking compensation in court.

“The Supreme Court left open two doors for us – the compensation on lack of consultation, and compensation of the project itself, and all of its massive, ongoing infringements, including cross-border pollution concerns,” Chief Luggi said.

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