Katzie First Nations suing BC Hydro, the province

A lawsuit against BC Hydro and the provincial government filed by the Katzie First Nation claims the Alouette Lake Dam has destroyed sockeye salmon runs, violating the First Nation’s rights.

Katzie First Nation filed the lawsuit in BC Supreme Court on Oct. 20, 2022, against both BC Hydro and the B.C. Ministry of Energy, Mines and Low Carbon Innovation.

The lawsuit claims BC Hydro’s hydroelectric system has changed the landscape and waterscape in Katzie Territory in such a way that it has curtailed and even eradicated “culturally important salmon”.

Katzie First Nation assert that the Alouette Lake Dam has drastically reduced the flow of water into the Alouette River and cut off access to Alouette Lake for spawning sockeye salmon, destroying the natural sockeye run in the Alouette.

These changes, claim the Katzie First Nation, have led to significant and negative impacts on their ability to exercise their rights.

Not only did BC Hydro “materially breach” an Impact Mitigation Contract that the Katzie entered into with the provincial energy corporation in 1996, but, Katzie First Nation claim that they continue to do so by failing to make sure that BC Hydro’s water licenses in the Alouette River System did not jeopardize the Katzie rights, and failing to undertake ongoing assessment of Katzie rights and mitigate the impacts on Katzie rights. Katzie say they have suffered and continue to suffer losses and damages as a result of BC Hydro’s ongoing breaches of the 1996 contract.

In a statement Katzie First Nation Chief Grace George explained that the significance of the Alouette watershed to the members of the Katzie, to their culture and their society, has beeen since “time immemorial”.

“The Province of British Columbia and BC Hydro signed a contract with Katzie that included promises to work with us to identify the toll that the dam had taken on our rights – including on Alouette salmon and the Alouette River ecosystem – and to mitigate those impacts. They are in breach of that contract because they are refusing to honour those legal commitments,” she stated.

The lawsuit runs through the history of how the Katzie First Nation entered into a contract with BC Hydro.

According to the court document, BC Hydro first obtained permission from the province to build and operate a new power station at Stave Falls in June, 1995. However, they were given an order by the province that they had to first develop an operating plan for the Alouette River System, a Water Use Plan, with the Katzie First Nation and other stakeholders, in order to incorporate interests with respect to fish and fish habitat, recreation, flood control, and energy production.

Then, in July, 1995, BC Hydro applied for an additional water licence, which would double the amount of water the Alouette Hydroelectric System could divert from the Alouette River for power generation purposes. This licence would be held by the corporation in perpetuity.

As the deadline approached for the submission of the water use plan, Katzie made it clear to BC Hydro that they would not support the long-term water licences that BC Hydro had applied for and other various regulatory approvals along the river system, unless BC Hydro, “addressed and accounted for the historic and ongoing impacts of the Alouette Hydroelectric System on Katzie Rights.”

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In July, 1996, former Katzie Chief, Chief Diane Bailey, told BC Hydro that they could not proceed with determining flow regimes for the Alouette Hydroelectric System before they had fully discharged its lawful duties regarding Katzie rights. On July 25, 1996 BC Hydro and the Katzie reached a consensus on how the energy corporation could respect Katzie rights along the river system which was spelled out in a Commitment Letter.

Both groups entered into the Impact Mitigation Contract on Sept. 27, 1996, with respects to the river system and Katzie rights that was to be fulfilled by BC Hydro “in good faith”.

Two days prior to this contract BC Hydro submitted the Water Use Plan for approval, which they received in October the following year.

Then, according to court documents, in 1998, a study was jointly commissioned and completed by Katzie and BC Hydro, called the Impacts Study, that identified Katzie historic use on the river system for food, travel, spirituality, and economy – as well as “the serious impacts which BC Hydro’s operation of the Alouette Hydroelectric System has had on Katzie rights.”

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However, the Katzie claim, that despite this study having been completed almost 25 year ago and the Impact Mitigation Contract, BC Hydro has not yet mitigated any of the impacts on Katzie rights identified in the Impact Study.

“The province and B.C. Hydro are now denying any legal obligation to do this work or honour their legal commitment to Katzie First Nation,” added Chief George in her statement, noting that the provincial government publicly takes the position in its Principles that Guide B.C.’s Relationship with Indigenous Peoples that “it must uphold the honour of the Crown, which requires the provincial government and its departments, agencies, and officials to act with honour, integrity, and good faith in all of its dealing with Indigenous peoples”.

“Yet here we are, at this time of reconciliation, a First Nation needing to take these measures in order to protect what little remains within our territory. We are being forced to spend our time going to court in order to have a legally binding promise honoured,” concluded Chief Grace.

Local environmentalist Jack Emberly questioned whether the Katzie First Nation will also be discussing flood control.

“The city should be asking to be sitting in on these negotiations or talks with the Katzie and their lawyers, to make sure that flooding is also part of any kind of agreement,” he said, adding that the city represents everybody else in addition to the Indigenous people.

“We are in atmospheric rains now. We are probably going to have more floods and it’s the city’s job to make sure that any terms that (BC) Hydro has for managing the watershed takes in flood control issues,” Emberly noted.

Katzie First Nation is seeking a number of outcomes from the lawsuit. For one, the band wants a declaration that BC Hydro and/or the Ministry failed to fulfill its obligations under the 1996 Impact Mitigation Contract. They want an up-to-date review of the nature and extent of Katzie Rights in the Alouette River System done by either BC Hydro or the Ministry, in consultation with Katzie. They want BC Hydro or the Ministry to identify historical and ongoing impacts on Katzie rights caused by their activities in the river system, also done in consultation with the Katzie. They want BC Hydro and/or the Ministry to bear responsibility for mitigating the impacts identified on Katzie rights and that the costs of the updated review to be paid for by BC Hydro and/or the Ministry.

If the Katzie do not get results above, they will be seeking damages in an amount to be determined at trial, which could be for general damages, aggravated damages, and/or punitive damages. They may also ask for a portion of BC Hydro’s profits from the Alouette River System.

Responses to the lawsuit have yet to be filed by BC Hydro or the provincial ministry.

None of the claims made have yet been tested in court before a judge.