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.

ICYMI: Site C Dam Over Budget, Behind Schedule and Could be Replaced by Alternatives

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.”

ICYMI: NDP Union Heavyweights Come Out Fighting for Site C

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

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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

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.