Completed Inquiries – Reports Released

01/03/1998

Athabasca Chipewayan First Nation [W.A.C. Bennett Dam and damage to IR 201] – March 1998

The ancestors of the present-day Athabasca Chipewyan First Nation were traditional hunters and trappers who were not predisposed to agricultural pursuits. The fur trade flourished in the delta of the Peace, Athabasca, and Birch Rivers, and the aboriginal population was also well supplied with game, fish, and waterfowl. With the discovery of gold in the Yukon in 1896, large numbers of non-Indians began passing through the area on their way north, and this activity spurred the signing of Treaty 8 in 1899. Although the treaty provided for reserves "not to exceed in all one square mile for each family of five," it was widely recognized at the time of treaty that most residents of the area were less concerned with immediately selecting reserves than with protecting their traditional way of life based on hunting, fishing, and trapping.

By 1918, railways and steamers provided easy access to the area for non-native and Métis trappers. In 1922, in response to escalating competition for increasingly scarce resources, the Indians began to seek exclusive rights to a sufficient area to "make a living on, in hunting, trapping and fishing." Eventually, reserves were set apart in 1931, including the main reserve (IR 201)as well as seven small sites where the Chipewyan had houses, gardens, cemeteries, and fishing grounds. Because of concerns raised by Alberta, IR 201 was not finalized until 1935. Owing to its marshy nature, it was made larger than the treaty requirements had to be and was defined by natural water boundaries rather than a more typical survey.

The complex flood regime of the Peace-Athabasca Delta meant that the peak spring flows of the Peace River created a natural hydraulic dam that flooded the delta every two to three years. This process recharged the wetlands and "perched basins," providing an exceptional habitat for muskrat and other fur-bearing species. The Chipewyan relied heavily on these resources for a "good living."

In 1957, Premier W.A.C. Bennett and the British Columbia government announced plans to develop a large-scale hydroelectric project to harness the immense power-generating potential of the Peace River. Construction of the dam 965 kilometres upstream of the Peace-Athabasca Delta commenced in 1962, before the institution of mandatory environmental assessment procedures.

When BC Hydro began regulating the flow levels of the Peace River to fill the reservoir in 1968, no formal warning of the flow reduction had been given to downstream residents, and no environmental or social studies had been undertaken to determine the effects of the dam. The impact of the dam on wildlife habitat in the delta was "immediate and severe," since the natural water regime was effectively reversed to provide the high flows required in winter to supply the Lower Mainland’s power demands. Although the federal government had been aware of the dam’s potential impact downstream by 1959, it chose not to enforce the requirement that British Columbia obtain approval under the Navigable Waters Protection Act (NWPA). Meetings requested by Canada and Alberta to address the problem were ignored or rebuffed by British Columbia. A lawsuit commenced by the First Nation and others in 1970 did not proceed because of a lack of resources. Steps were initiated to mitigate the damages through a variety of works in the delta, but they either had limited effectiveness or caused other flooding problems and had to be removed. The inescapable conclusion is that the construction and operation of the Bennett Dam caused the First Nation and IR 201 to sustain significant environmental damage as the delta dried out. The reserve now has been rendered almost valueless to the members of the First Nation.

Although not every aspect of the Crown’s fiduciary relationship with aboriginal peoples gives rise to an enforceable fiduciary duty, the Commission applied the "rough and ready guide" established in Frame v. Smith for determining whether a fiduciary obligation should exist in a given case. As early as the Royal Proclamation of 1763, the federal Crown undertook the general responsibility to protect and preserve Indian reserve land. With specific regard to Treaty 8, Canada had provided assurances that the Indians could continue to hunt and trap as they had before the treaty, and this was the critical guarantee that had induced them to accept the treaty.

Moreover, when large numbers of trappers began to compete with the Indians in the delta area, IR 201 had been set apart because its rich resources would secure a stable source of income for the First Nation. No reasonable interpretation of Treaty 8 would allow Canada or a province to prevent a First Nation from exercising its treaty harvesting rights, to destroy the economies on which the Indians’ signing of Treaty 8 was premised, or to allow substantial interference with treaty rights on reserve land. The Crown had both a duty and a significant power to exercise its constitutional jurisdiction over navigation, federal proprietary interests, and Indian lands, and to protect the First Nation’s reserve lands and treaty rights. The First Nation was and is entitled to expect the Crown to take reasonable steps to prevent, mitigate, or seek full compensation for destruction of its livelihood, damages to IR 201, and substantial infringement on its treaty harvesting rights.

The Indian Act provides the Minister with extensive powers to control and manage reserve land. In this case, the Crown’s fiduciary responsibilities with regard to these lands were not narrowed by the devolution of its control and management powers to the First Nation. Although the First Nation exercised some measure of autonomy by commencing legal action against British Columbia, the Crown also had scope to exercise its powers unilaterally to protect the First Nation pursuant to its regulatory authority under the NWPA. BC Hydro argued that this Act was inapplicable because the Peace River was not navigable at the dam site, the whole body of water must be considered to determine navigability. The approval of the federal Minister of Public Works was required for all dams constructed on navigable waters, and, since the Peace River is navigable, Canada had considerable leverage to intervene in the construction and operation of the dam. Although Canada argued at the inquiry that intervention for purposes other than navigation would be improper, the Supreme Court of Canada in Friends of the Oldman River Society held that it is appropriate for the Minister to consider the environmental impacts of a work on other federal areas of jurisdiction, including reserve lands. The Court also found that the Crown has a positive duty to exercise its regulatory authority under the NWPA.

The First Nation was peculiarly vulnerable to the Crown’s unilateral exercise of discretion in failing to take steps to protect the First Nation’s interests. The Crown had the regulatory authority with regard to the dam’s construction, and had the resources to prevent, mitigate, or seek compensation for damages caused to IR 201. The Crown was also required to take reasonable steps and exercise ordinary prudence to protect the reserve and the First Nation’s livelihood, but it failed to meet this standard of care. The steps taken by Canada to mitigate were simply too little, too late. The situation cried out for intervention on behalf of aboriginal peoples and Canadians in general,but Canada failed to act, notwithstanding its responsibilities for, among other things, national parks, navigation, riparian rights, and Indian lands. In so doing, Canada breached its fiduciary obligations towards the First Nation. The Commission therefore recommended that the First Nation’s claim be accepted for negotiation under the Specific Claims Policy.

Response: In April 2001, government rejected recommendations made in March 1998: "Canada did not have a fiduciary duty to protect Reserve No. 201 against damage caused by construction and the operation of the Bennett Dam by a third party. Canada did not have the duty to invoke the provisions of the Navigable Waters Protection Act to stop the construction of the Bennett Dam or dispose of it once it was built. Furthermore, Canada did not have an obligation on the basis of Treaty No. 8 to ensure that the reserve would be protected from any damage resulting from the construction and operation of the Bennett Dam."

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