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Thursday, February 21, 2019 | Your community newspaper since 1916

First Nations get win in ongoing legal battle with RioTinto Alcan Mark NIELSEN Citizen staff mnielsen@pgcitizen.ca

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Digging deep Steffen Lehmker from Germany heads to the finish line in the biathlon men’s sprint, standing, at Otway Nordic Centre on Wednesday. For more coverage of the 2019 World Para Nordic Skiing Championships, see page 9.

The stakes have been upped in an ongoing legal battle between two north-central B.C. First Nations and RioTinto Alcan over the diversion of water out of the Nechako River. In a decision issued Jan. 30, B.C. Supreme Court Justice Nigel Kent granted the Saik’uz and Stellat’en First Nations permission to seek a form of declaratory relief should they prove their allegations against the company. Specifically, Kent said they could seek an injunction that would require RioTinto Alcan to “reinstate the functional flows that make up the natural flow of the Nechako River.” They could also secure declarations that would effectively require the federal and provincial governments to enforce the injunction. It was the latest turn in a court case that dates back to October 2011 when a lawsuit against the company was first filed. It hit a roadblock in December 2013 when a B.C. Supreme Court Justice threw out the action. But in March 2015, the B.C. Court of Appeal overturned the lower-court decision and six months later, the Supreme Court of Canada denied RioTinto Alcan’s subsequent appeal. Located about 185 kilometres west of Prince George, the Kenney Dam was constructed in 1952 and created the massive Nechako Reservoir which provides hydro power to Alcan’s aluminum smelter in Kitimat in northwest B.C. The lawsuit claims that the 1987 and 1997 Settlement Agreements entered into by Alcan and B.C. and Canada are not defenses against the First Nations, based on constitutional grounds. Kent said the plaintiffs may still “confront formidable obstacles” when it comes to proving their case. “The dam has been in operation for many years and has been the subject of much negotiation and litigation since its inception and in which the Crown has presumably acted in bona fides promotion of the public interest,” Kent said. “The Crown has also been actively involved in creating downstream enhancement of the Nechako watershed area, including the initiation of programs aimed at the protection and conservation of the fish within the Nechako system. Establishing liability, whether in nuisance or breach of riparian rights, resulting in damage of a sort warranting a legal remedy may be challenging indeed, particularly insofar as overcoming any defence of ‘statutory authority’ is concerned.” A trial on the matter is set to begin on Sept. 9 in Vancouver.

Herbicide persists in wild, edible plants, UNBC study says Randy SHORE Vancouver Sun Edible and medicinal forest plants that survive aerial spraying of glyphosate can retain the herbicide and related residues for at least a year, a new study led by a UNBC professor has found. “The highest and most consistent levels of glyphosate and AMPA (aminomethylphosphonic acid) were found in herbaceous perennial root tissues, but shoot tissues and fruit were also shown to contain glyphosate in select species,” according the study published in the Canadian Journal of Forest Research. Herbicides containing glyphosate are used by forest companies to kill aspen and other broadleaf plants in areas that have been logged and replanted with trees of commercial value such as Douglas fir and pine, according to the Ministry of Forests. When herbicides are sprayed by plane, the spray can deliver non-lethal doses of glyphosate to nearby “non-target plants,” some of which may store the compound indefinitely or break it down very slowly, said author Lisa Wood, a registered professional forester and assistant professor of forest ecology at UNBC. Wood found unexpected levels of glyphosate in new shoots and berries of plants that survived an aerial herbicide application made one year earlier.

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Lisa Wood, a forester and assistant professor at the University of Northern B.C., is the author of a study on the impact of aerial spraying of the herbicide glyphosate in the Canadian Journal of Forest Research. These findings raise concerns about forage plants used extensively by First Nations in northern B.C. where most spraying occurs, she said. The 10 species tested were selected for their importance as traditional-use plants, because some First Nations had expressed concerns about the long-term ef-

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fects of glyphosate on wild plants, said Wood. Glyphosate is typically broken down in soil by microorganisms over a period of months, but how long it persists in living plant tissues is unknown, she said. “If a plant dies from an application it falls to the soil and there are microbes that gobble up the

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glyphosate,” she said. “When they don’t die, they have interesting ways of coping, often by storing and isolating the glyphosate.” Forest companies are obligated by provincial legislation to manage regenerating forests until the replanted trees are free-growing, which may require selective tree and brush removal and use of

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herbicides to delay the growth of deciduous plants and tree species that crowd or shade timber stock species. Chemical treatments are generally less expensive than manual control methods because fewer treatments are required, the ministry said. About 17,000 hectares of forest land are sprayed each year, around 10 to 12 per cent of the area replanted each year. The total has been trending down since 2016 when the ministry relaxed brush control requirements in the Cariboo-Chilcotin. Improved, fast-growing seedlings have also reduced the need for spraying. The B.C. Wildlife Federation is poised to call for tighter controls on the use of glyphosate in forestry, citing in a draft resolution its negative impact on food and habitat for wildlife and the “growing body of evidence that suggests glyphosates are carcinogenic.” Provincial regulations encourage chemical treatment by forest companies that want to avoid the expense of replanting cutblocks when timber species don’t thrive, said federation spokesman Jesse Zeman. “Government guidance governing the use of glyphosate is an outcome of archaic legislation that puts merchantable timber first and all other values, including wildlife second,” he said.

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