The Supreme Court of Canada ruled against the Carrier Sekani Tribal Council over its bid to be consulted on a major power deal with B.C. Hydro.
The decision is a win for Rio Tinto Alcan, and overturns a decision of the B.C. Court of Appeal from February 2009.
The Supreme Court granted Rio Tinto Alcan's appeal, saying that the Sekani's rights were not adversely affected by the deal, and as a result were not entitled to consultations.
The power deal gives B.C. Hydro long-term access to a portion of the electricity produced at Alcan's Kemano generating station near Kitimat, where the company has a major aluminum smelter.
The Carrier Sekani had asked to be heard in a B.C. Utilities Commission hearing on the electricity purchase agreement but was denied. The native council, which represents eight bands west of Prince George, wanted to appear before the commission on the issue of whether the Crown fulfilled its duty to consult before B.C. Hydro entered into the electricity purchase agreement. The Carrier Sekani said the diversion of water from Alcan's use infringes on its rights and title, and that no consultation ever took place.
The power sale agreement from Alcan's Kemano facility in northwest B.C. was a condition set out by the company in order to proceed with a $2-billion upgrade.
Power is generated by diverting water from the Nechako at reservoir, which flooded First Nations traditional lands in the 50s.
The tribal council is taking some consolation in the high court's conclusion that long-term impacts must be remedied by an action for damages in the courts. "We're somewhat disappointed, of course, but the court has opened a door for an action for damages for the failure to consult in the past, and has indicated the Crown must now come to us to talk about compensation," said Carrier Sekani Tribal Counci chief David Luggi.
In a release from Montreal, Rio Tinto Alcan welcomed the high court ruling.
"Rio Tinto Alcan acknowledges the Supreme Court of Canada's decision and is grateful to have it behind us so that we can continue to focus on taking positive steps forward with all First Nations and stake-holder relationships in our operating area," said Paul Henning, the aluminum miner's vice-president of B.C. operations.
Rio Tinto Alcan, formerly Alcan Ltd., is a unit of Rio Tinto Group, one of the world's biggest miners. The group is headquartered in the UK, combining Rio Tinto plc, a London and NYSE-listed company, and Rio Tinto Limited, which is listed on the Australian Securities Exchange.
Rio Tinto produces aluminum, copper, diamonds, coal, uranium, gold, industrial minerals and iron ore from mines and mills in Australia and North America with significant businesses in South America, Asia, Europe and southern Africa.
With Canadian Press.
