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.”

B.C. Faces Lawsuit Over Rushed #SiteC Permits https://t.co/BVRP7zl45g @StopSiteC #bcpoli #cdnpoli pic.twitter.com/84CIYFYRhZ

— DeSmog Canada (@DeSmogCanada) July 29, 2016

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

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.

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.