The Sai’kuz and Stellat’en First Nations will square off against aluminium giant Rio Tinto in a 200-day trial over the diversion of water out of the Nechako River.
“This case is about the devastating impacts of the construction and operation of the Kenney Dam on the Nechako River, its fisheries and the Saik’uz and Stellat’en’s constitutionally protected Aboriginal rights,” said Saik’uz chief Priscilla Mueller in a news release on Wednesday, Oct. 16.
“We are going to court to protect the Nechako River, the sturgeon and salmon that are suffering because of [Rio Tinto BC Works]’s diversion,” Mueller said.
The ongoing legal battle against the company was first launched in 2011 when it was still known as Rio Tinto Alcan, following a buyout of the Aluminum Company of Canada (Alcan) by Rio Tinto in 2008. In 2015 Rio Tinto announced it was dropping the name Alcan from its Canadian operation – the Kitimat smelter is now known as Rio Tinto BC Works.
During the trial, both Saik’uz and Stellat’en will lead expert evidence about how BC Works’ diversion has caused or is contributing to population declines and that environmental flows are needed to restore proper ecological functioning of the Nechako River.
The Nations are seeking a court order requiring that harm to the Nechako River and its fisheries, and the violation of the Nations’ rights, cease, read the release. In January, B.C. Supreme Court judge Mr. Justice Kent granted the First Nations permission to seek declaratory relief if they win the court case.
Declaratory judgments can provide legal certainty to each party in a matter when this could resolve or assist in a disagreement. Often an early resolution of legal rights will resolve some or all of the other issues in a matter.
The trail begins on Oct. 21 and Mueller said she is hopeful that the court will help restore the Nechako River and its fisheries for the benefit of future generations.
Kenney Dam diverts water out of the Nechako River to generate power for the company’s aluminium smelter in Kitimat and to sell to BC Hydro. The company diverts approximately 70 percent of the water that would normally flow into the Nechako resulting in enormous downstream impacts, as stated in the media release.
“The river is no longer acting like a river,” explains Mueller.
Additionally, the First Nations are saying that the water that passes down the river enters the Nechako River nine kilometres downstream of the Kenney Dam, after it is released through the Skins Lake Spillway located approximately 80 kilometres to the west of the dam site.
“The little water released into the Nechako fails to meet the basic environmental flow needs and does not mimic the natural flow patterns of the river,” read the release.
The Committee on the Status of Endangered Wildlife in Canada’s fall recommended in a 2018 report that the populations of chinook and sockeye salmon that rely on the Nechako River and are impacted by the Kenney Dam, be listed in the Species at Risk Act.
The public proceedings will mostly take place in the BC Supreme Court in Vancouver and a portion of the hearing will held in Prince George from Nov. 18 to 22 to allow Saik’uz members to attend the trial and testify.
Rio Tinto responded in a statement Oct. 17, saying the company prefers to work in partnership with First Nations groups to build relationships that are mutually beneficial.
Rio Tinto maintains they have sought to find ways to resolve the issue without going to court.
“Rio Tinto has always, and will continue to operate, with all of the required permits and approvals under applicable laws, including a 1987 tripartite agreement with the Canada and British Columbia governments that ensures protective flows for fish. Rio Tinto cannot comment further on this case while it is before the courts.”