EXCLUSIVE: B.C. Government Broke Law to Expedite Site C Dam Construction, Legal Experts Say

The B.C. Ministry of Forests, Lands and Natural Resource Operations (FLNRO) granted BC Hydro several exemptions from the B.C. Wildlife Act to keep Site C dam construction from falling behind expected timelines, DeSmog Canada has learned.

The exemptions have some local First Nations and legal experts concerned Premier Christy Clark’s promise to “push the project past the point of no return” is occurring at the cost of B.C.’s own permitting rules and wildlife management.

“BC Hydro has gone rogue,” Chief Roland Willson of the West Moberly First Nation told DeSmog Canada. “Worse yet, the province is aware of the situation and chooses to look the other way. What’s the point of having a regulator if it refuses to regulate?”

E-mail correspondence obtained by DeSmog Canada show BC Hydro requested last-minute permission from the Ministry of Forests to undertake “emergency amphibian salvage” along the banks of the Peace River. The ministry granted BC Hydro several exemptions from the Wildlife Act to conduct the work — something legal experts say is against the law.

“The Wildlife Act and its regulations do not allow for exemptions from the ordinary permitting process,” Jocelyn Stacey, assistant professor at the UBC Allard School of Law and expert in environmental and administrative law, told DeSmog Canada. “This means that FLNRO acted without legal authority when it issued the exemption to BC Hydro.”

Ignoring B.C.’s established permitting process “raises the specific concern that BC Hydro is carrying out its Site C dam construction operations without the oversight by public officials that should be guaranteed by the ordinary permitting process,” Stacey added.

On May 13, BC Hydro sought permission to capture and relocate amphibian species including Boreal chorus frogs, Columbia spotted frogs, long-toed salamanders, wood frogs and western toads, all of which are protected under the B.C. Wildlife Act. 

Province Acting “With Impunity” in Granting Exemptions

BC Hydro proposed to begin the salvage work on May 17, only four days after permission was requested. In a letter addressed to Chris Addison, director of resource development with the Ministry of Forests, BC Hydro noted a preliminary field visit to the capture sites was conducted on May 12 — just one day before the request was submitted.

BC Hydro also noted that delaying permission to perform amphibian salvage — which the crown corporation claimed was crucial to the creation of three dikes along the south bank of the Peace River side channel — “risks significant schedule delays.”

In an e-mail dated May 25, FLNRO official Golnoush Hassanpour notified members of the Prophet River and West Moberly First Nations that several exemptions to the Wildlife Act were granted to BC Hydro. In a follow-up e-mail, Addison noted there is no provision in the Wildlife Act to grant such exemptions.

“There is no provision in the Wildlife Act for this specifically,” Addison wrote in the e-mail. “Rather it is an administrative law principle that functionally amounts to inducing error.”

UBC’s Stacey said the acknowledged lack of legal authority to grant such exemptions is troubling.

“I am most troubled…by the fact that the FLNRO official admitted he did not have the legal authority to issue such an exemption and suggested that he acted with impunity in doing so,” Stacey told DeSmog Canada.

“This kind of action goes against our most fundamental understanding of the rule of law: that public officials act according to law, and not based on their personal opinions or what they view as expedient under the circumstances.”

Stacey said this instance raises a much broader concern that unauthorized “exemptions” may be issued routinely, but added that because of a “general lack of transparency with the permitting process, the public is not aware that this is happening and cannot seek recourse from the courts in the form of judicial review.”

The Ministry of Forests, Lands and Natural Resource Operations did not provide comment by time of publication.

BC Hydro: Site C “Construction Schedule At Risk”

The management of amphibian species falls under the auspice of the Wildlife Act and while BC Hydro submitted an application for an official salvage permit to the ministry in September 2015, it didn’t expect a permit to be issued until mid to late June 2016.

In its request letter, BC Hydro stated, “The salvage works cannot wait until the permit is issued; as noted, the delay in construction of the dikes puts the main civil works construction schedule at risk.”

Chief Lynette Tsakoza of the Prophet River First Nation said the province’s willingness to exempt BC Hydro from the rules is part of a “pattern.”

“Every other company would face charges, but not BC Hydro.”

Both the Prophet River and West Moberly First Nation are currently fighting the approval of the Site C dam in a legal challenge.

Last month, 250 top-level scientists and academics from across Canada called on the federal government to put the brakes on construction of the Site C dam — a move supported by the Royal Society of Canada.

Gordon Christie, associate professor at the UBC Allard School of Law, said the exemptions are emblematic of the province’s determination to advance the project — something that puts First Nations fighting the project in court at a disadvantage.

“What this particular episode tells you is how the province approaches things,” Christie told DeSmog Canada. “Their strategy is clearly just get this to a point where it can’t be stopped.”

Christie said the further BC Hydro gets the Site C project down the development path, the more difficult it will be for First Nations legal challenges to stand up in court.

“That’s the sickening part of all of this,” he said. “It takes so long for these kinds of challenges to get through the courts…and at the end of all that time passing you’re going to have the dam already built. That’s the strategy of the government.”

Christie added any compensation owed to Treaty 8 First Nations will be borne by the taxpayer, not the provincial government.

“They don’t lose at all,” he said. “Really it’s about the big issue: this is clearly a proposal that is being pushed through regardless of whether it’s infringing on treaty rights.”

Chief Willson said by granting BC Hydro exemptions from provincial rules like the Wildlife Act, the province is placing BC Hydro’s needs above those of First Nations and the general public.

“Forget environmental laws. Forget constitutional rights,” he said. “Forget everything that holds our society together. That’s what BC Hydro is demanding we all do.”

He added, “What infuriates me is that the province has agreed to ignore the laws and instead protect the selfish interests of BC Hydro.”

Clarence Willson, councillor with the West Moberly First Nation, told DeSmog Canada he sees these exemptions as emblematic of the government’s rush to advance the project.

“This in particular is a very good example of how our concerns seem to be pushed aside to expedite this project and we see this in all kinds of consultation we have with government,” he said.

“They’re doing everything they need to do grease the skids to move this project forward.” 

BC Hydro Letter to FLNRO Chris Addison re: Amphibian Salvage Permit Exemptions by DeSmog Canada

Image: Land is cleared along the banks of the Peace River to make way for Site C construction. Photo: Jayce Hawkins

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