First Nations' appeal for Nechako River rights partially upheld

An appeal from the Saik’uz and Stellat’en First Nations has been partially upheld, following a BC Supreme Court ruling in January 2022 regarding the two groups' aboriginal rights to fish the watershed for food, social, and ceremonial purposes.

The Nechako River was diverted 70 years ago to create the Kenney Dam, when the Province enacted legislation authorizing mining company Rio Tinto Alcan to build a hydroelectric facility for smelting aluminum.

Saik’uz and Stellat’en sought to restore the river's natural flow river to revitalize fish populations, including sockeye salmon and endangered Nechako white sturgeon, launching a case against Rio Tinto Alcan and the Province over impaired fishing rights.

While the two nations' bid for an injunction to restore the natural flows of the Nechako was dismissed, it was noted their rights had been impaired by the dam.

However, presiding Justice Nigel Kent said Rio Tinto Alcan had complied with water licence terms and contracts through the Province established in the 1950s, with no need for to change river management if they continue to abide by those agreements.

Kent concluded a defence of statutory authority applied because the Kenney Dam was constructed with plans approved by the federal and provincial government, and that the water licences granted to Rio Tinto Alcan expressly authorized diversion of water from the Nechako, storage in the reservoir, and use for hydroelectric production.

Saik’uz and Stellat’en quickly sought an appeal, alleging Kent had erred in his defence of Rio Tinto Alcan through statutory authority, noting the defence was constitutionally inapplicable to them, in addition to erring in declining to make a finding of Aboriginal title and by granting limited declaratory relief.

Declaratory relief is when an applicant presents a legal question to the court to seek clarification on their rights. Typically, there's no consequences sought beyond the court’s opinion.

The appeal has been partially upheld by the Supreme Court of BC, with a Feb. 26 review ruling noting the Saik’uz and Stellat’en did not establish that Kent erred by declining to make a finding of Aboriginal title or in dismissing the common law nuisance claim against Rio Tinto Alcan.

He had erred in principle by resolving the claim for declaratory relief, noted the ruling's summary.

"He took an unduly narrow approach to the scope of declaratory relief that was available to him in light of his findings of a proven Aboriginal right to fish and the ongoing impairing effects on the storage and diversion of water from the Nechako River. The resulting declaration was too restrictive, generalized, and of no real practical utility to the appellants," they added.

You can read the full appeal ruling by clicking here.

Tom Summer, Local Journalism Initiative Reporter, Alaska Highway News