The B.C. government is being taken to court for giving BC Hydro permission to move amphibian species along the banks of the Peace River during construction of the Site C dam.
The legal challenge, recently filed by Josette Weir and Sierra Club BC, asks for a judicial review of the government’s actions in June when a regional manager with the Ministry of Forests, Lands and Natural Resource Operations (FLNRO) granted BC Hydro permission to perform amphibian salvage without proper permits issued in accordance with the Wildlife Act.
The emergency permits, first revealed by DeSmog Canada, raise questions about the relationship between government ministries and BC Hydro, which is under pressure to keep to Premier Christy Clark's word to get the dam "past the point of no return" before the May 2017 provincial election.
“There is a lot of pressure to get this project built amid controversy,” Weir, who lives in Smithers, B.C., told DeSmog Canada. “But it’s very important that the people who are in charge apply the law.”
Documents released to DeSmog Canada, including a request from BC Hydro for last-minute permits and several e-mails between a FLNRO official and local First Nations, show ministry bureaucrat, Chris Addison, issued permission for emergency amphibian salvage without due process.
In the e-mail exchange Addison suggested he had the legal authority to do so although Jocelyn Stacey, assistant professor at the UBC Allard School of Law and expert in environmental and administrative law, told DeSmog Canada Addison violated the law when he granted BC Hydro exemption from the permitting process.
“The Wildlife Act and its regulations do not allow for exemptions from the ordinary permitting process,” Stacey said. “This means that FLNRO acted without legal authority when it issued the exemption to BC Hydro.”
Weir said she was deeply troubled by this apparently blatant circumvention of the law.
“What is shocking is that [Addison] did it knowingly,” she said. “One can only wonder about the political hierarchy that is overseeing his ability to issue exemptions or not.”
“There must be a lot of political pressure and we as members of the public must be vigilant.”
Weir and the Sierra Club BC brought the case to the provincial Supreme Court through the Pacific Centre for Environmental Law and Litigation (CELL).
“I’m very thankful for that newly formed group,” Weir said. “It’s going to be their first case and I’m so grateful the lawyers would look into this. Otherwise it would have just fallen under the radar.”
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Chris Tollefson, co-founder of the centre and experienced environmental litigator, said this issue is troubling from a rule of law perspective.
“This is the kind of situation that desperately needs to be brought to the courts for adjudication,” Tollefson said. “The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true, that should concern all British Columbians regardless of how they feel about Site C."
Bob Peart, executive director of Sierra Club BC, said he sees the issuing of illegal permits as part of a larger government status quo, where environmental and First Nations rights are violated with impunity.
The responsibility is left with individuals, First Nations or environmental organizations to bring legal challenges to the courts, Peart said, which is time-consuming and expensive.
"Industry and government have much thicker wallets than we have and to do these cases ourselves — we just don’t have that kind of funding, nor do First Nations," he said, adding the government appears to bet on the fact no one will challenge them when they misstep.
"It's a spin of the dice, risk analysis on their part," he said. "It's a part of the pattern of this government."
David Conway, BC Hydro’s community relations manager for the Site C project, did not respond to DeSmog Canada’s request for comment.
The Ministry of Forests, Lands and Natural Resource Operations told CTV they were acting in the public interest.
"Given the extenuating circumstances, the regional manager…decided to communicate his comfort with the amphibian removal proceeding on a limited scope and in advance of a broader permit which has now been issued," the statement read. "The alternative would be to allow the amphibians to die."
In 2011, Weir won a legal challenge that forced Health Canada to review the impacts of Monsanto’s herbicide Roundup on amphibian species.
“It opened me up to amphibians. I have no claim that I have a special relationship with amphibians aside from being French,” she said with a laugh.
“But I do understand that they are a part of the natural web that we are eroding all the time. As members of the public we should be extremely vigilant about the health of the planet.”
Weir added Site C is a unique issue because of the political pressure to complete the project.
“There is this sense in the north that no one is looking,” Weir said. “That’s why it’s very important to follow the rules. That’s why we have laws and regulations.”
Image: Site C construction along the banks of the Peace River. Photo: Jayce Hawkins