Feds surprise B.C. by abstaining on Site C dam legal challenge

The German word schadenfreude immediately sprang to mind for Victoria lawyer Robert Janes when he heard the surprise news that the federal government will not contest an interim injunction application by a Treaty 8 First Nation seeking to halt work on the Site C dam.

Janes said there are many officials in Ottawa who believe the B.C. government is deliberately putting Ottawa in an untenable position on the Kinder Morgan pipeline expansion championed by Alberta and the federal government.

“That has probably not created a lot of willingness on the part of the federal government to bail B.C. out of the fight that B.C. has chosen to have with the Treaty 8 First Nations,” said Janes, a litigator with extensive experience representing First Nations.

“I’m sure there are many federal politicians and officials having the feeling of schadenfreude or, as the German say, happiness in the misery of others, as they look at B.C. in this situation. But that of course is purely speculative.”

The decision leaves the B.C. government to stand alone in court this July fighting West Moberly First Nations, which brought the injunction application pending a full civil trial that aims to terminate the Site C project on the grounds that it infringes on treaty rights.

The question of whether the Site C dam infringes on treaty rights has never been tested in the courts, and a favourable ruling for First Nations could shut down the entire Peace River hydro project.

Tim Thielmann, a lawyer for West Moberly First Nations and Prophet River First Nation, said Canada’s position appears to be unprecedented.

Thielmann said he is not aware of any other case in Canada in which a government has elected not to defend its own authorizations from being struck down by litigation brought by First Nations.

The Site C dam required multiple federal authorizations to proceed, including one permit that granted BC Hydro permission to cause “serious harm” to fish habitat.

“They [the federal government] say that they do not consent to the injunction,” Thielmann said in an interview. “But they do not oppose the injunction. What they say is they take no position. It’s the equivalent of abstaining on a vote.”

In taking no position, Ottawa has also elected to bring no evidence to the courts to defend against the injunction, leaving B.C. on its own to justify the $10.7 billion Site C project, Thielmann pointed out.

In response to the First Nations’ civil claim, the federal government said it anticipates BC Hydro will submit “further applications for authorizations to Canada in respect of various aspects of the construction of Site C,” raising the question of what position Ottawa might take on future Site C project authorizations if the Kinder Morgan debacle continues.

Contradictory positions from federal government

The federal move also shines a national spotlight on the B.C. government’s contradictory position towards First Nations, a position that Chief Roland Willson of West Moberly First Nations called “hypocrisy.”

“They’re playing hardball on Kinder Morgan,” Willson said in an interview. “They’re saying ‘let’s stop everything and let the courts decide,’ but here on Site C they’re just rolling ahead.”

“We’ve asked them numerous times to stop. That’s the part that’s hard to understand. They’re saying one thing for Kinder Morgan but totally saying the complete opposite on Site C. They’re speaking out of both sides of their mouth.”

Like the federal government, B.C.’s NDP government has pledged to advance reconciliation and to uphold the United Nations Declaration on the Rights of Indigenous Peoples, which states that large resource projects such as the Site C dam must have the free, prior and informed consent of Indigenous peoples.

“The irony here is that the [B.C.] premier himself has said that he will allow the courts to give direction to him before taking steps on Kinder Morgan that could be unconstitutional,” Thielmann said in an interview.

“The Site C direction he has so far chosen — to permit BC Hydro to destroy those lands and to fight the First Nations in court with teams of lawyers and endless resources — [means] that the First Nations ultimately never have that opportunity for the court’s decision on constitutionality before their rights are destroyed, before it’s too late. And that’s wrong.”

Janes, a principal with JFK Law Corporation, agreed that “it’s hard to reconcile” the B.C. government’s positions on the Site C dam and Kinder Morgan pipeline.

“Canada’s response really puts B.C. on the spot and highlights the inconsistencies of its position when it comes to First Nations,” said Janes, whose firm represents Alberta’s Mikisew Cree in an on-going challenge to the decision of the Federal Court of Appeal that First Nations are not owed a duty to consult when the Crown develops legislation.

Willson described the federal decision as “exciting” and said his nation is hopeful their injunction application now stands a greater chance of success.

“It’s also unnerving,” he said. “They cause a big fight and then they put their hands up and step back and say we’re not actually going to fight.”

Along with Chief Lynette Tsakoza of Prophet River First Nation, Willson called on the B.C. government to meet with Treaty 8 First Nations to discuss how to wind down work on Site C until the courts can rule on the question of treaty infringement.

“We remain ready and willing to discuss alternatives to Site C with the B.C. government,” Tsakoza said in a statement.

Willson said he believes the NDP government’s position would be different if the former B.C. Liberal government had advanced the Site C dam in the Vancouver area instead of in the province’s northeast, which some now refer to as an industrial sacrifice zone.

“Because it’s up north and it’s just affecting some First Nations and farmers, it’s no big deal. That’s the part that gets me upset. We don’t matter to them,” said Willson.

“And we don’t have the votes to make a difference. But this shouldn’t be about whether or not we can vote them [the NDP] in or vote them out; this should be about what’s right and what’s wrong.”

The federal decision is the second time in recent months that Treaty 8 First Nations fighting the troubled Site C project have had their hopes raised.

Instead of opposing an “interim, interim injunction” threatened by the nations’ legal team, in February BC Hydro decided to halt logging a 30-kilometre tract of old-growth boreal forest in a Site C transmission line corridor. That work remains suspended until after the injunction hearing in July.

B.C.’s Attorney General ministry referred questions about the federal decision to B.C.’s energy ministry.

In an emailed statement, the energy ministry said it is aware that the Attorney General of Canada received instructions to “take no position” on the injunction application brought by West Moberly First Nations.

“As this matter is before the Court, and out of respect for the judicial process, we have no further comment at this time,” said the statement.

A third Treaty 8 signatory, the Blueberry River First Nation, has launched a separate legal action claiming the cumulative impact of industrial development on its traditional territory, including the Site C dam, infringes on constitutionally protected treaty rights.

The Blueberry case, which is expected to stretch over 100 trial days, will also be heard starting in July.