BC Court of Appeals upholds rights of aboriginals to be consulted for two major projects
Court upholds rights of aboriginals to be consulted - Rulings will affect two major projects in B.C.
By Neal Hall, Canwest News ServiceFebruary 19, 2009
The B.C. Court of Appeal has issued two major rulings upholding the rights of First Nations to be consulted by the government, which will affect two major projects in B.C.
In one case, the court has struck down a licence required to build a massive new hydro transmission line from Merritt to Coquitlam because native groups were not consulted.
In the other case, the court ruled there was "massive" infringement of the right of the Carrier Sekani Tribal Council to be consulted in the Kemano Power Project and later expansion near Kitimat that involves B.C. Hydro buying electricity from the Rio Tinto Alcan Inc. aluminum smelter.
The appeal court granted the appeal of the tribal council and found that the B.C. Utilities Commission erred in approving the Electricity Purchase Agreement between B.C. Hydro and Rio Tinto Alcan in January 2008.
The court found "B.C. Hydro, as a Crown corporation, was taking commercial advantage of an assumed infringement on a massive scale, without consultation."
The court was also critical of the B.C. Utilities Commission, finding "the commission has demonstrated in several cases an aversion to assessing the adequacy of consultation."
"I think this is a very significant decision both for the Kemano project itself and also for aboriginal rights," said Vancouver lawyer Gregory McDade, who represented native bands in both cases. Tribal Chief David Luggi was pleased by the appeal court victory.
"We are pleased that the Court of Appeal has recognized in law that First Nations interests must be taken into account in important decisions relating to the Kemano Project," he said in a statement.
"The Alcan Kemano Project remains the most devastating environmental impact in our region. First Nations were never consulted when the Kemano Project was built, and we were not involved in the backroom deal in the 1987 Settlement Agreement, by which flows in the Nechako River were reduced by over 70%. Our fisheries have never recovered, and the Nechako sturgeon is endangered and almost extinct."