Leaders of the West Moberly and Prophet River First Nations are warning that the B.C. provincial government will face a billion dollar lawsuit over treaty violations if it decides to go ahead with the controversial Site C dam.
Chief Roland Willson of West Moberly First Nation said in an interview with DeSmog Canada that the government must factor in a hefty legal settlement when it is looking at the cost of continuing the dam construction, as he says there is no doubt that proceeding with the $9 billion dam would violate the 1899 Treaty 8 agreement.
“We are hoping that (the government) has enough information in front of them right now that Site C will not go forward,” Willson said.
“If they approve it we will file.”
Under Treaty 8, the government of Canada promised to guarantee the rights of local First Nations to hunt, trap, fish and continue their traditional way of life on their land.
The B.C. Utilities Commission report noted that although Treaty 8 First Nations unsuccessfully brought a legal challenge concerning the project's infringement of constitutionally protected treaty rights, the option remains for the nations to file a civil case for damages caused by Site C.
“The courts have addressed administrative law issues including the Crown’s duty to consult but have not addressed whether the Crown, by approving Site C has unjustifiably infringed the Treaty 8 rights," the BCUC panel wrote in its report. "West Moberly and Prophet River First Nations submit that the Crown bears the risk that in the event a lawsuit is commenced, the court will find in favour of Treaty 8 First Nations.”
The BCUC panel also found that B.C. does not need new power for 23 years and, if the province does need the power two decades for now, it could come from the Canadian entitlement under the Columbia River Treaty for a fraction of the cost, so that means there is no overriding reason for violating the First Nation’s treaty, Willson said.
There is also a portfolio of alternatives such as geothermal and conservation that could provide equivalent power, at the same cost without flooding the river valley, said Tim Thielmann of Sage Legal, the law firm representing the two First Nations.
According to court cases, such as the precedent-setting Tsilhqot’in ruling, the province cannot infringe treaty rights without a “substantial and compelling objective.”
“So we don’t see how they can meet the first step in the legal test set out by the Supreme Court of Canada for justifying the project,” Thielmann said.
“There is no substantial and compelling reason for them to build it, so the only reason would be political…The idea of building the most impactful project in Canadian history when there isn’t a need for the power and there are other alternatives, is about as textbook example of failing to meet that test as you could ever imagine,” he said.
The province needs to acknowledge that a treaty lawsuit could mean a soaring price-tag for the dam, Willson said.
“The leading energy expert Robert McCullough estimates that cancelling the dam would save British Columbians about $4-billion. You can make that $5-billion because, if the NDP approves this boondoggle, they’ll force us to seek damages for infringement of our treaty,” he said.
Previously, the Federal Court of Appeal dismissed a lawsuit opposing the dam by the West Moberly and Prophet River First Nations, but did not answer the question of whether treaty rights were violated, and Thielmann says the case has since been strengthened by the BCUC report.
When First Nations representatives met with Energy and Mines Minister Michelle Mungall and Indigenous Relations and Reconciliation Minister Scott Fraser in Fort St. John last week they warned that in 1975, when the Quebec government tried to build the James Bay Project without First Nations approval, the Cree and Inuit of Northern Quebec were awarded a $225-million settlement.
Given inflation, the value of that today would be about $988 million, according to the Bank of Canada’s inflation figures.
ICYMI: First Nations Chief Hopeful For Stop to Site C, More Balanced Approach to Resource Extraction
The BCUC report also found Site C is over budget and behind schedule. Chief Lynette Tsakoza said in a news release that flooding the land for no useful purpose would violate at least four articles of the United Declaration on the Rights of Indigenous Peoples, which the NDP government has pledged to uphold.
“What UNDRIP requires is free, prior and informed consent,” Tsakoza said.
“Every First Nation opposed this dam when it was first proposed. But if ‘yes’ is the only answer the government will accept, how free is that consent?”
The dam is supported by the McLeod Lake Indian Band, who reached an economic agreement with BC Hydro, but, in addition to West Moberly and Prophet River, the dam is opposed by Dene leaders in the Northwest Territories and the Mikisew Cree of Alberta.
The province has said a decision will be made by the end of the year whether to continue with the project, which was started under the previous Liberal government, or to cancel it and reclaim the land.
Mungall, in an emailed statement answering questions from DeSmog Canada, said “the provincial government will make a decision on Site C that works for families, First Nations, businesses and the sustainability of our environment and economy.”
The meeting last week with Treaty 8 members was part of that commitment, she said.
“We attended meetings to listen and to discuss issues as they relate to Site C,” Mungall said.
“The Treaty 8 meetings were only part of our work to evaluate a very difficult decision that needs to be made.”
But Willson is suspicious that politics and pressure from unions are influencing the NDP government and pushing them towards completing the dam.
Wednesday Premier John Horgan told reporters government is still collecting information about Site C and has yet to make a final decision.
“We’ve heard from people who say the utilities commission work was exemplary, and we’re heard from people who say the utilities commission work was deficient in a number of areas,” he said. “So we have asked for more information.”
The government will hear further commentary on Site C and the BCUC report from a panel of invited experts, including Robert McCullough, Nov. 30.
Willson and Tsakoza have invited Horgan to a feast with community members so he can hear their concerns first-hand and, although Horgan has not yet responded, he has acknowledged the invitation, Willson said.
“I think it is very unlikely he will come, but, if not, we will go to them,” Willson said.
“We know they have a difficult decision, but, sometimes, being a leader is not about doing what makes you popular, it’s about doing the right thing — and the right thing is to cancel this bad project.”
Image: West Moberly Chief Roland Willson at the 2016 Paddle for the Peace. Photo: Jayce Hawkins