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20/04/1998

Indian Claims Commission Says Canada Breached Duty to Protect Athabasca Chipewyan Indian Reserve from Environmental Damage Caused by Bennett Dam

"As is glaringly apparent from the evidence in this case, it is more than the First Nation's treaty rights to hunt, fish and trap for food that have been affected; the First Nation's very way of life and its economic lifeblood were substantially damaged as the Government of Canada, armed with full knowledge of the ecological destruction that would ensue, did nothing."

Ottawa (April 20, 1998) - The Indian Claims Commission was in Edmonton today to release its report on the claim of the Athabasca Chipewyan First Nation of Fort Chipewyan, Alberta. The First Nation requested that the Commission inquire into Canada's rejection of its claim for damages resulting from the construction and operation of the WAC Bennett Dam in British Columbia. The Commission found that Canada owes an outstanding lawful obligation to the Athabasca Chipewyan First Nation, and recommends that Canada accept the First Nation's claim for negotiation under the Specific Claim Policy.

The Athabasca Chipewyan Reserve (IR 201) lies wholly within the Peace-Athabasca Delta, a World Heritage site and one of the largest freshwater deltas in the world. Prior to construction of the Bennett Dam on the Peace River near Hudson's Hope, B.C., the delta was host to a remarkable variety of birds, mammals and fish, an ecosystem maintained by the natural ebb and flow of waters in and out of the area.

Evidence before the Commission proved that the Chipewyan people had made a good living by trapping, hunting and fishing throughout the delta region. When they signed Treaty 8 in 1899, the Chipewyan Indians sought and obtained assurances from Canada's negotiators that they would be able to maintain their traditional way of life. When IR 201 was set aside in 1935 as an exclusive hunting, trapping, and fishing area for the First Nation it was chosen specifically because of its rich environment and abundance of muskrat, game, fish, and birds. In the early 1900s, Indian Affair's officials had described the area as a "hunter's paradise".

Construction of the WAC Bennett Dam changed all that. Work began in 1962 and the 600-foot-high dam was completed in December 1967. When the last diversion tunnel was closed off, BC Hydro began to generate power by regulating the downstream flow of water on the Peace River to fill the Williston Lake reservoir (then ranked as the eighth largest man-made reservoir in the world). Although it took until 1971 for natural run-off to fill the reservoir completely, the regulation of water flows on the Peace River had a profound impact on the sensitive ecology of the Peace-Athabasca Delta.

By 1970, it was apparent that damage to wildlife habitat in the delta had been immediate and severe. The Premier of Alberta, Harry Strom, and a group of concerned scientists sought the intervention of the federal government. Although Canada was warned as early as 1959 that the dam might have significant hydrological and ecological effects on the delta and IR 201, it did nothing to warn the First Nation or prevent damage to their lands. The federal government initiated discussions with the affected provinces, but British Columbia declined to participate so nothing was done.

The trapping of muskrat, which the band depended on for a substantial proportion of their income, was drastically affected by the Dam. When water levels were reduced in the delta area, the small "perched basins" - which provided a rich habitat for muskrat and other fur-bearing animals ... began to dry out. Harvest levels for muskrat after the dam's construction were only about 9 per cent of peak harvest years, and 8 to 22 per cent of the potential harvest under optimal conditions. The Deputy Minister of Indian Affairs reported in 1970 that, prior to completion of the dam, ... Indians and Metis in the Fort Chipewyan area...derived between $100,000 to $250,000 a year from harvesting muskrat, ducks and geese in the Delta and on Lake Athabasca, not to mention the commercial fishing activity. Also there has been a very serious loss of country food resources for these people to which no dollar value can be assigned. These resources are all now in jeopardy with grave social consequences and the prospect of sharply accelerating welfare costs for this department as well as for the province... "

In 1991, the First Nation filed a claim under Canada's Specific Claims Policy for "Canada's breach of their fiduciary and statutory obligations to protect the environmental integrity and economic value of the land, water and wildlife of #201 from the ongoing adverse impacts of the WAC Bennett Dam." The claim was rejected by Canada in 1994. Canada maintained that it did not have any power or discretion to intervene in the Peace River power development project, and so could not prevent or mitigate damages.

Following a thorough inquiry into the history and legal issues surrounding the claim, the ICC found that the Crown did have a statutory and fiduciary obligation to take reasonable steps to protect IR 201 from environmental damage. The Commission stated that the Crown could have exercised its regulatory authority under the Navigable Waters Protection Act (NWPA) to determine whether the dam project was properly licensed and approved before construction. The Crown could then have exercised its descretion to determine whether the dam's construction would affect other federal areas of interest, including the First Nation's treaty rights and interests in IR 201. If Canada had insisted that the dam be licensed and approved under the NWPA, the Crown could have taken steps to maintain the ecology of the delta.

ICC Commissioner Carole Corcoran stated, "We have no hesitation in concluding that members of the Athabasca Chipewyan First Nation suffered extreme hardship and economic loss as a result of the destruction of the delta and environmental damages to IR 201. The community suffered not only a loss of resources, but the very lifestyle and culture which was built around hunting and trapping. Given the severity of the impact, it is our view that the Crown must take reasonable steps to fully compensate community members for the destruction of their economic livelihood, damages to IR 201, and the substantial infringement on their food harvesting rights under Treaty 8."

Since the federal Crown had a fiduciary obligation both under treaty and under the Indian Act to protect and preserve the treaty rights, the reserve land base, and the legal and economic interests of the First Nation, the Crown breached its statutory and fiduciary obligations to the First Nation by failing to take reasonable steps to prevent, mitigate, or seek compensation on behalf of the band for damages to IR 201 and its economy.

ICC Co-Chair James Prentice stated that the Crown had a duty to take proactive measures to protect the delta given the magnitude of the Bennett Dam project: "This situation cried out for the Government of Canada to intervene on behalf of aboriginal people, and Canadians in general, who share a profound concern over the integrity of one of the most ecologically rich and sensitive areas on the continent. The Peace-Athabasca Delta has an intrinsic value to all Canadians, and efforts should have been made to preserve the integrity of the delta, while attempting to balance the need for economic development. The federal government had significant interests in maintaining the delta for the benefit of future generations. By declining to take reasonable steps to prevent or to mitigate environmental damages to the delta, the Crown has forsaken the legitimate interests of all Canadians and certainly the treaty rights of the Athabasca Chipewyan First Nation."

The ICC was established in 1991. Its mandate is: to inquire, at the request of a First Nation, into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations; and to provide mediation services on consent of the parties at any stage of the claims process.

Therefore, the report does not provide conclusions or recommendations regarding the province of British Columbia or BC Hydro, which were not parties to this inquiry. Canada has committed to respond to the Commission's reports within a six-month period.

To download the report PDF