By Zoë Ducklow for The Tyee.

Recent experiences with the federal government have left Prophet River First Nation member Helen Knott wary of government promises.

So while she and other Indigenous people are excited about NDP provincial government commitments to adopt the UN Declaration on the Rights of Indigenous Peoples, words are not enough. And the Site C dam in northeastern B.C., they say, will be the government’s first test of its commitment.

“The vocalization that they’ll adhere to UNDRIP is a start, but it’s about actions,” Knott says. “And Site C is the place to start with it, because it’s the issue that’s out front and in everybody’s faces.”

Prophet River is one of two Treaty 8 First Nations who have steadfastly opposed the dam.

UNDRIP calls for free, prior and informed consent from Indigenous peoples on issues and projects that affect them. It also protects their right to strengthen their distinct spiritual relationship with territorial lands and water.

No Free, Prior, Informed Consent for Treaty 8 on Site C, Says Member

The provincial government repeated its commitment to adopt UNDRIP at the B.C. cabinet and First Nations leaders gathering earlier this month. It was also included in the mandate letters to each ministry, including to the Ministry of Energy, Mines and Petroleum Resources, which is responsible for the massive and controversial Site C dam project.

“The federal government left a bit of a bitter taste in my mouth,” Knott says. “So faith now and trust now is earned by action, rather than given at face value. Here at the provincial level, they have a second chance to show that, ‘Yeah we are committed to reconciliation, and yes we are going to adhere to UNDRIP.’ That calls for free prior and informed consent which hasn’t happened within Treaty 8 territory.”

Free, prior and informed consent recognizes Indigenous peoples as distinct groups with a right to self-determination and self-government, and gives them the power to say no.

Helen Knott in DeSmog Canada's video Disturbing the Peace. Photo: Jayce Hawkins | DeSmog Canada

The UNDRIP approach is fundamentally different from how Canada’s system of consultation works, and from how consultation on Site C was managed. Even though some First Nations in the area signed impact benefit agreements, they were never asked to consent to the significant build on their territory. First Nations who said no were essentially ignored in consultation, they say.

“If communities refused to meet with BC Hydro, it was shown that BC Hydro did their due diligence,” Knott says. “They got that check mark, and it looked bad on the community. But if the communities did consult then it was like, ‘OK, what’s the problem? They consulted you.’ It didn’t matter whether or not you said no, I don’t want this.”

She adds: “These consultation sessions shapeshift into information sessions, which doesn’t hold that spirit of free, prior and informed consent.”

UNDRIP also recognizes the right to “maintain and strengthen their distinctive spiritual relationship” with traditional lands and water. The valley in the flood zone holds thousands of years of spiritual and cultural history. Being by the river is part of a spiritual practice for Knott.

“I take people down to where the Halfway River meets the Peace. We do prayers and ceremony. Things that help cleanse and reground people.” The flood zone holds some of the last remaining access points to water in Treaty 8 territory, she says. “I can’t imagine going down to the reservoir. It’s just not the same thing.”

The valley also holds the key to their stories. It’s only when you’re in those places, on the land, that the stories get told, Knott says. “When you’re losing such a large tract, you lose a lot of who you are and that ability to connect with it.”

#SiteC to Test @bcndp’s Commitment to #Indigenous Rights https://t.co/UDjTLEyAbs #bcpoli @jjhorgan @AJWVictoriaBC @SavePeaceValley

— DeSmog Canada (@DeSmogCanada) September 14, 2017

Consent Must Be 'Given at Each Stage'

Sheryl Lightfoot, Canada Research Chair in Global Indigenous Rights and Politics and a UBC professor, says partnership at all stages of decision making is one of the core ways to implement free, prior and informed consent.

“It’s supposed to be an end to top-down hierarchical, colonial rule. Decisions and actions are supposed to be taken in partnership with Indigenous people,” she says. “Free, prior and informed consent means Indigenous peoples are at the table from the beginning of the project and continuing all the way through — and that consent is given at each stage.”

That means they’re still at the table even when a project is in process and especially when they never gave consent originally.

The provincial government has a chance to show they’re serious by immediately applying UNDRIP principles to Site C, Lightfoot says. The project should be halted while environmental concerns are reviewed with Indigenous peoples at the table and consultation is readdressed.

“That’s the commitment you’re making when you say you’ll implement the UN Declaration, is that you will work in partnership with Indigenous peoples,” she says.

First Nations should be equal partners in any decision that affects them, Lightfoot says.

“Site C is an instructive case, because there has been so much public opposition to it,” she says. “So I think it’s incumbent on the government to take that seriously. It would send a really strong signal that we are going to be doing government differently. We’re going to be making decisions differently now here in this province and setting a tone for the rest of the country, and probably the rest of the world.”Grand Chief Stewart Phillip, who leads the Union of BC Indian Chiefs, is confident the new government will stick to its commitments.

“I think it’s abundantly clear that they have every intention of following through with their commitment to implementing UNDRIP,” he says, noting the government has already, as promised, referred the Site C project to a review by the B.C. Utilities Commission.

While the commission review excludes environmental, cultural and cumulative territory impacts, the government has promised to take these things into account when making the final decision. Phillip expects that the principles represented in the UN Declaration, coupled with the NDP’s intent to reconcile with First Nations, will factor into the government’s final decision on Site C.

“I’m of the mind that the project will be cancelled,” Phillip says.

Michelle Mungall, provincial minister for energy, mines and petroleum resources, said in an email that her ministry is working with Treaty 8 Nations to discuss their concerns.

Image: B.C. Premier John Horgan at the 2017 First Nations Leaders’ Gathering: Rights, Respect and Reconciliation. Photo: Province of B.C. via Flickr

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Nothing remains at the Rocky Mountain Fort site where Peace Valley farmers and First Nations camped for 60 days in the hopes of stopping clear-cut logging for the Site C dam. The camp was dismantled in March and the old-growth spruce and cottonwood forest was logged, as BC Hydro prepares to convert the Class 1 heritage site into a Site C waste rock dump.

But one notable thing still stands: the civil lawsuit BC Hydro filed in January against five campers and a supporter, a suit the B.C. Civil Liberties Association describes as a matter “of grave concern.”

The 13-page lawsuit accuses six Peace Valley residents of conspiracy, intimidation, trespass, creating a public and a private nuisance, and “intentional interference with economic relations by unlawful means.”

Most worrisome for the people named is that the suit seeks financial damages for BC Hydro that could result in the loss of their homes, life savings or other assets. Five of the six already stand to lose their houses, farms, land or traditional territory to the nearly $9 billion Peace River dam.

Josh Paterson, executive director of the B.C. Civil Liberties Association (BCCLA), says the association is extremely concerned about the civil suit because it could put a chill on freedom of expression. It might cause others “to think twice before they talk about their political opinion.”

SLAPP style #SiteC suit by @BCHydro might stop others from expressing political opinion https://t.co/bO9dZGmsPc @SavePeaceValley #bcpoli

— DeSmog Canada (@DeSmogCanada) May 25, 2016

BCCLA’s unease is heightened because BC Hydro is a Crown corporation, says Paterson. “For a government agency to come down in that way is of grave concern. What it does is send a message, perhaps deliberately, that ‘you’d better be careful if you plan to oppose these kinds of developments’…BC Hydro as a public institution should be very cautious about making these kinds of claims for damages it would impose.”

The civil suit, according to University of Victoria law professor Chris Tollefson, bears some of the hallmarks of a SLAPP suit, a strategic lawsuit against public participation.

SLAPP suits can stifle freedom of speech and quash opposition to controversial projects like the Site C dam, which Premier Christy Clark has vowed to push “past the point of no return,” despite four on-going court cases against the dam by Treaty 8 First Nations and Peace Valley landowners.

A fifth on-going legal action, launched by the Blueberry River First Nations, claims treaty rights have been violated by the cumulative impacts of Site C and other industrial development in the Peace.

“If the end result is that they face financial or personal ruin, a key implication is that others won’t want to follow in their footsteps and take that risk,” says Tollefson. “Then free speech becomes a luxury that only those who have nothing, or those who are incredibly rich, can afford.”

Tollefson, an expert on SLAPP suits, says it is the first time he has ever heard of a Crown corporation seeking damages from an individual in B.C. “or anywhere else for that matter,” for lawfully and peacefully exercising their right to protest on a matter of public interest.

Those named in the suit include farmers Ken and Arlene Boon, Helen Knott, a social worker from the Prophet River First Nation, and Yvonne Tupper, a community health worker from the Saulteau First Nations.

Esther Pedersen, a Peace Valley farmer whose land was used to helicopter two survival shacks across the river for the campers and to collect food donated by community members, was also named. The suit includes “Jane Doe” and “John Doe,” leaving open the possibility for other Site C opponents to be singled out as well.

After BC Hydro filed the civil suit, it launched an injunction application to remove campers from the fur trade fort site on the Peace River’s south bank, near the confluence of the Moberly River. That area was deemed to be so ecologically and historically important that the B.C. government had made four designations to protect its heritage resources, wildlife and old-growth forests. The government even went so far as to set aside the land to become part of a future B.C. protected area.

But BC Hydro had obtained the necessary government permits to log the forest and convert the fort site area into a 216-hectare rock dump for potentially acid-generating waste rock from Site C construction. After the camp was ruled illegal by the courts, the people named in the suit said they were law-abiding citizens and promptly dismantled their encampment.

Ken Boon says he and his wife Arlene made a personal request to BC Hydro CEO Jessica McDonald to drop the civil suit when McDonald recently visited their farm.

Peace River Valley farmer Ken Boon at the Rocky Mountain site encampment. Photo: Sarah Cox.

Accompanied by a driver and an aide, McDonald spent two hours with the Boons. “We basically agreed to disagree,” says Boon of the visit, which he characterizes as cordial and personable. “We showed her around the farm.”

The Boons will lose productive fields to flooding and when riverbanks slough into the dam reservoir, a deep body of water that will stretch for 107 kilometres along the Peace River and its tributaries. The Boon’s home and farm buildings are slated to be destroyed, to make way for the $530 million re-location of Highway 97 away from the flood zone.

Boon says McDonald was willing to drop the suit, but only if the Boons were prepared “to sign a document basically stating we would not impede further work or stand in the way of the project.”

The Boons declined to sign. They believe it is their constitutional right to oppose Site C, which will flood at least 6,500 hectares of prime farmland and, in the words of a government-appointed panel that reviewed the project, have “significant adverse effects” on the environment and on lands and resources used by First Nations.

In late April, BC Hydro launched a second civil suit, this time against hunger striker Kristen Henry and three others camped outside the Crown corporation’s head office in Vancouver to protest the Site C dam project.

The Vancouver campers packed up 10 days later, saying they did not have the money or the inclination to fight BC Hydro in court. BC Hydro claimed “hundreds of thousands” of dollars from them in damages, the four campers stated in a press release.

BC Hydro said the camp had forced it to take expensive measures to step up security, including spending $30,000 for new door handles to which people cannot chain themselves, up to $60,000 a month to hire the company Xpera Risk Mitigation and Investigation to monitor the campers, and up to $35,000 a month to boost general security measures.

Even though that camp, too, is gone, the civil law suit stands, Dave Conway, BC Hydro’s Site C community relations manager, confirmed in an email. Conway said in a separate email that the crown corporation cannot comment on the civil suit against the six Rocky Mountain fort campers due to the fact that it is an “on-going court action.”

The majority of U.S. states, along with Ontario and Quebec, have anti-SLAPP suit legislation. In 2001, the NDP government in B.C. passed similar legislation, called the Protection of Public Participation Act. Six months later, that legislation was repealed by the newly-elected B.C. Liberal government.

Such legislation, says Tollefson, aims to expedite justice and provide the courts with tools to dismiss SLAPP suits early on “so a very deep-pocketed corporation doesn’t get to drag it out and benefit from simply being better endowed.”

Image: Ken Boon on his farmland in the Peace Valley. Photo: Emma Gilchrist.

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First Nations women camping at the Rocky Mountain Fort site and opposing ongoing construction for the Site C Dam say they feel intimidated and harassed by male security guards and “investigators” with ties to BC Hydro.

Women at the encampment told DeSmog Canada small groups of men arrive on site at least twice a day to film the predominantly female campers and repetitively question them about their intentions.

“There would be three or four of them with cameras and all males,” says Helen Knott, a Treaty 8 member and Fort St. John social worker who has sometimes been alone in the bush when security guards and investigators suddenly appear. “It was intimidating…as a young indigenous women coming into daily contact with men with cameras in the middle of nowhere.”

Knott has been camping at the historic fort site since New Year’s Eve when she and other Treaty 8 members, along with Peace Valley farmers and business owners, set up a wilderness camp to maintain a presence in an old-growth forest on Crown land that is slated to be clear cut and flooded for the Site C dam.

One group of rotating campers keeps a fire burning throughout the day near the bridge over the Moberly River that was constructed by BC Hydro during the Christmas holidays in preparation for logging. The forest is prime habitat for the blue-listed fisher and migrating songbirds, and is used by Treaty 8 members and elders for spiritual purposes and to collect plants for traditional medicines.

Helen Knott at the encampment. Photo: Sarah Cox.

Another group remains at the camp a 20-minute walk away, at the site of the first European fort in mainland B.C., where the Beaver people came to trade furs with early explorers and voyageurs in the late 1700s and early 1800s. The fort site, along with 42 other heritage sites along 107 kilometres of the Peace River and its tributaries, would be flooded by the $8.8 billion Site C dam project.

Knott says she has experienced some uncomfortable moments during the twice-daily questioning, during which security “investigators” film the women without their permission and ask for the names of the people present, how long they will stay and if they intend to allow or prevent “timber harvesting” in the area.

No logging has taken place since January 7 when the campers, who call themselves the Treaty 8 “Stewards of the Land,” began to maintain a constant vigil from dawn until dark, in temperatures as low as minus 25 Celsius, after old-growth cottonwoods were logged that day when they briefly returned to the fort site to get food.

“The other day because I wasn’t giving him (the investigator) the answers that he wanted, his voice started getting a little bit louder and he was talking over me,” Knott said. “He said ‘you’re not answering my questions,’ because I answered his question with a question. I asked him, ‘Are you still going to infringe on my treaty rights?’ And he started talking over me and his face got red and finally he just calmed down and he just walked away…He was getting worked up.”

Knott says she and others have asked the security investigators many times not to come into the camp where women are sleeping, eating and using an outdoor toilet, but they continue to do so at least twice a day, filming the campers standing outside their tent and cooking and sleeping huts, and asking the same questions again and again. “That is . . .basically borderline harassment especially when we’ve asked [them not to]…And they say this is what we were instructed to do and we say ‘well, it’s not okay.’”

Helen Knott and Yvonne Tupper do sunrise yoga on the newly-constructed bridge over the Moberly River as security guards watch and film. Photo: Sarah Cox.

The security guards and investigators wear jackets emblazoned with “Saulteau Safety and Security.” The Saulteau First Nation belongs to B.C.’s Treaty 8 Tribal Association, and the Nation was once strongly opposed to the dam’s construction. But following a 2015 band council election the Nation’s new leadership has taken a different tack.

According to a BC Hydro information bulletin, in July 2015 the new Saulteau chief and councilors agreed to terms for a Site C impact benefits agreement. The agreement followed a controversial on-line vote by band members that saw 144 people cast ballots out of 711 eligible voters. Eighty-nine band members voted in favour of the agreement, which included lump sum payments, an annual payment stream and contracting opportunities. A logging company owned by a Saulteau band member was awarded the contract to clear the south banks of the Peace River, including the area around the historic fort.

Camper Yvonne Tupper, a Treaty 8 member from the Saulteau First Nation, says she does not recognize any of the nine different security guards and investigators she has encountered, all of them wearing “Saulteau Safety and Security” jackets. A second Saulteau woman at the Treaty 8 Stewards of the Land camp, who did not wish her name to be public, also said she did not recognize any of the security guards or investigators.

“When a single female is out here they ask more questions and they intimidate more and we have proof of that [because they are] being recorded,” says Tupper, a Chetwynd community health worker.” She says the campers film every interaction with security investigators and guards.

A company profile on the Work BC Employment Services Centre for Fort St. John describes Saulteau Safety and Security as a “partnership” between the Saulteau First Nations and the Vancouver-based company Securiguard Services Ltd. It says a joint venture agreement signed by the Saulteau chief and councilors provides “a significant opportunity to partner with the local first nations people and award them the right to protect their lands and represent their identity.” Securiguard is a Site C contractor, according to BC Hydro.

Huts airlifted into the encampment, which is four hours from Fort St. John by highway, backroad and snowmobile. Photo: Sarah Cox.

A December 11, 2015 job posting for Saulteau Safety and Security guards based in Fort St. John directs applicants to the Securiguard website. The job posting asks for candidates “who are able to effectively and positively communicate in a customer service oriented manner with a variety of people.” The jobs pay a starting wage of $16 to $19 an hour. Duties include welcoming people into the area, patrolling, crowd control, crime prevention and “providing excellent customer service.”

BC Hydro media relations spokesperson Dave Conway, responding to an emailed request for an interview with BC Hydro to discuss the Rocky Mountain Fort camp and Saulteau Safety and Security, emailed back what has become a scripted response about the camp which states that BC Hydro is “not moving equipment within the immediate proximity of individuals or the encampment itself.”

Conway did not respond to a second email with specific questions about Saulteau Safety and Security and the joint venture’s interactions with female campers.

Verena Hofmann, a Peace resident who is supporting Treaty 8 members at the camp, says she also feels intimidated by the security investigators and has told them so on camera. “This is repetitive,” she said on January 13 to two investigators from Saulteau Security who called themselves Glen and Sten, after they filmed her and asked the same questions for the second time in several hours. “To me that feels like pestering and harassment and it doesn’t feel like trying to find workable solutions as we’re hearing in the media quoted by BC Hydro.”

Signage at the encampment. Photo: Sarah Cox.

The area slated to be logged is the subject of an ongoing judicial review court case by the West Moberly and Prophet River First Nations, who say they were not adequately consulted regarding the permit process. These two First Nations have two additional court cases against Site C. Peace Valley landowners also have an appeal case against the dam that will be heard in early April.

A fifth on-going court case, launched by the Blueberry River First Nation, claims that the cumulative impact of Site C and other extensive industrial development in the Peace violates the band’s treaty rights.

Image: Yvonne Tupper points to trees cut on crown land that is the subject of the ongoing court case with the West Moberly and Prophet River First Nations. Photo: Sarah Cox.

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