First Nations want redress for old hydro projects
November 1, 2010
By Canadian Consulting Engineer
A ruling by the Supreme Court of Canada on October 28 declared that a First Nation in Northern B.C. did not ha...
A ruling by the Supreme Court of Canada on October 28 declared that a First Nation in Northern B.C. did not have the right to be consulted over the sale of electricity from a large hydroelectric dam.
The Carrier-Sekani Tribal Council had sued BC Hydro and Rio Tinto Alcan over a 2007 contract that involved Alcan selling power from the Kemano dam project.
The Supreme Court of Canada (C.J. McLachlin) upheld a decision by the B.C. trial judge that the 2007 energy purchase agreement was valid despite the lack of consultation with the First Nation. The Carrier-Sekani Tribal Council comprises eight member nations, representing 10,000 inhabitants, in an area west of Prince George.
So on one hand the Supreme Court decision could be viewed as a victory for the hydropower industry (for which many consulting engineers are employed). However, on the other hand the tribal council is buoyed by the judges’ remarks on a different tack. They believe the judge opened the door for them to claim compensation for the original construction of the dam decades ago.
The Kemano dam was built in the 1950s. The Supreme Court decision said that because the natural resources had been altered such a long time ago, the current claim by the band over the right to be consulted was not really the issue.
The judge suggested that the proper remedy would be for the First Nations to seek compensation for the infringement of their rights when the dam was originally built. One part of the judge’s October 28 decision reads: “Where the resource has long since been altered and the present government conduct or decision does not have any further impact on the resource, the issue is not consultation, but negotiation about compensation.” The judge warned, however, that efforts to pursue such remedies are time consuming “expensive, are often ineffective, and serve the interests of no one.”
The Carrier Sekani Tribal Council has issued a press release proclaiming partial victory in the Supreme Court of Canada decision and suggesting the council would indeed be seeking redress for the building of the dam decades ago. Tribal Chief David Luggi, said, “… the Court has opened a door for an action for damages for the failure to consult in the past, and has indicated that the Crown must now come to us to talk about compensation…. This has been a long struggle for us, and if we now have to go to Court for damages to get justice, then we’re going to do so.”
Vice Tribal Chief Terry Teegee went further and suggested the decision could impact many other energy projects: “[T]his re-affirms [the] groundbreaking decision in Haida in 2004, and strengthens the duty to consult for all government decisions that will have impacts in the future such as the decisions made by the National Energy Board.”
According to Wikipedia, the first Kemano project involved flooding 490 square kilometres of the Nechako Reservoir. The project reputedly removed approximately 75% of the flow of the Nechako River.