The West Moberly and Prophet River First Nations filed a civil suit in the Supreme Court of British Columbia Tuesday claiming the Site C dam, along with two other hydroelectric projects on the Peace River, unjustifiably infringe on their constitutionally protected rights under Treaty 8.

The two nations, whose traditional territory will be flooded by the Site C reservoir, have also requested an injunction on Site C construction work be reviewed by the courts this spring.

“The cumulative impact of the Bennett, Peace Canyon, and Site C Dams is to turn the Peace River into a series of reservoirs, destroying the unique cultural and ecological character of the Peace, severing the physical, practical, cultural and spiritual connection the Prophet have with the Peace, and infringing [West Moberly and Prophet’s] Treaty Rights,” the civil action states.

The action also requests the courts find the approval of Site C “unconstitutional, void, and of no force and effect.”

Significant adverse impacts of Site C for First Nations: panel

The $10.7 billion Site C dam, initially approved by the BC Liberal government in 2014, was given a final go ahead by the B.C. NDP government in December after it was sent for an expedited review by the B.C. Utilities Commission.

In its review the commission noted the question regarding Site C’s infringement of Indigenous rights remained unresolved and represented a risk to the Crown should the project go ahead.

Under Treaty 8, Canada promised to preserve the rights of First Nations to hunt, trap, fish and continue their way of life on their territory.

The environmental review panel appointed by the federal and provicincial governments found Site C would likely cause significant adverse effects on fishing, hunting and trapping in Treaty 8 territory. The panel — which was instructed not to make a judgment on whether Site C infringed on treaty rights — found the negative impact of the dam could not be mitigated.

In May of 2016 a group of 250 prominent Canadian academics asked Prime Minister Justin Trudeau to halt construction of Site C so impacts on indigenous peoples could be properly considered.

Site C damages estimated at $1 billion

The West Moberly and Prophet River First Nations now estimate damages caused by the completion of Site C could amount to $1 billion.

Financial compensation for damages caused by hydroelectric development is not without precedent. In 1975 the James Bay and Northern Quebec Final Agreement awarded Indigenous groups affected by hydro $225 million — worth roughly $1 billion today.

Tim Theilmann, lawyer from Sage Legal who is part of the West Moberly and Prophet River legal team, said the nations are not at this time seeking damages.

“After having discussed it with the legal team we don’t believe the project is past the point of no return,” Theilmann told DeSmog Canada.*

“We believe the balance of convenience, which the judge will have to weigh, favours the granting on an injunction to suspend all work on the project.”

During a press conference announcing Site C’s continuation, Premier John Horgan said he recognized First Nations stand opposed to Site C and said his government remains committed to reconciliation and the principles of the UN Declaration on the Rights of Indigenous Peoples.

“We are fighting for the land and the preservation of the Dunne-za way of life. But we are also fighting for values all British Columbians share, like transparency and economic prudence.” https://t.co/tUQ9ycKthk

— DeSmog Canada (@DeSmogCanada) January 16, 2018

“When it comes to reconciliation or working with Indigenous leadership, look there has been over 150 years of disappointment in British Columbia. I am not the first person to stand before you and disappoint Indigenous peoples,” Horgan said.

“But I am the first, I think, to stand before you and say that I am going to do my level best to make amends for a whole host of decisions that previous governments have made to put Indigenous peoples in an unwinnable situation.”

Infringement of Treaty rights unanswered question

The Supreme Court of Canada previously refused to hear an appeal brought by the West Moberly and Prophet River First Nations that argued the federal government failed to consider their constitutionally protected treaty rights when granting permits for Site C.

The nations filed for a judicial review of Site C in November 2014, saying the federal government failed to determine if the project, which will flood 107 kilometres of Peace River valley, violates those treaty rights.

In January 2017, a federal court ruled the government wasn’t obligated to make that determination, a ruling that puzzled legal experts. It was an appeal of that ruling the Supreme Court of Canada refused to hear in June 2017.

The journey through the court system has left members of West Moberly and Prophet River First Nations wondering who bears the responsibility for determining whether or not Site C infringes their rights as a treaty nation.

This new civil action may resolve that question.

The First Nations will also seek the disclosure of previously withheld government and BC Hydro documents.

“We need more information about the project’s schedule, budget and ongoing geotechnical challenges to accurately estimate the implications of suspending construction until our Treaty infringement claims are decided at trial,” West Moberly Chief Roland Willson said in a statement.

“We are fighting for the land and the preservation of the Dunne-za way of life. But we are also fighting for values all British Columbians share, like transparency and economic prudence.”

Prophet River Chief Lynette Tsakoza said documents released during disclosure could help shed light on the escalating costs of the Site C project, which in 2014 was projected to cost $8.3 billion.

“We’re not just asking the court to save the Peace River valley, but to save British Columbians billions of dollars by scrapping this ill-conceived, outmoded and unneeded boondoggle unravelling in plain sight,” stated Chief Tsakoza.

2018 01 15 Nocc of West Moberly Filed (00138091xe1c2e) by Tim Thielmann on Scribd

2018 01 15 Nocc Re Prophet River Filed (00138092xe1c2e) by Tim Thielmann on Scribd

*Correction Tuesday January 16, 2018 1:35 pm PST: This article incorrectly stated the West Moberly and Prophet River First Nations were seeking damages in their civil suit. A correction has been made to clarify the First Nations are rather seeking an injunction and not damages as their legal team believes the project is not past the point of no return. Comments by a member of the legal team, Tim Thielmann, have been added to clarify this point.

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.

This is a guest post by filmmaker Daniel J. Pierce.

The Wilderness Committee and other forest activists were in court in Victoria on Monday to limit Teal Jones' latest attempt to obtain a new injunction against logging protesters in the Walbran Valley.

Despite appeals from activists and a packed gallery of Walbran supporters, Teal Jones was awarded the injunction, which expires at the end of March, rather than September as they had requested.

The injunction creates 50-meter "bubble zones" around Teal Jones' machines, vehicles and work crews in the Walbran Valley, prohibiting the public from coming within 50 meters of any logging activities within the company's Tree Farm License 46.

The Central Walbran Valley from Ramshackle Pictures on Vimeo.

Justice Jennifer Power acknowledged that the Walbran Valley is an area of high public value, but she settled on the conclusion that Teal Jones does have the right to harvest timber in the area — and the public does not have a right to interfere with the company’s operations.

Activists started blockading Teal Jones' road-building and forestry activities in the Walbran Valley in early November 2015, when the B.C. government approved cut-block 4424 north of the Walbran River.

This highly contentious ancient forest — which is unfragmented by logging — falls within an area known as “the bite.” Environmental groups are calling on the government to include “the bite” into the adjacent Carmanah-Walbran Provincial Park.

The Wilderness Committee fears that the scope of this new injunction is overly broad and will interfere with lawful conservation activities in the Walbran, discouraging people from witnessing the logging or experiencing these ecosystems.

“This injunction might scare people away from going to the Walbran Valley to see the ancient forest, and it could chill public discussion about the logging and civil disobedience that has been occurring in the area,” said Torrance Coste, Vancouver Island Campaigner for the Wilderness Committee.  

But the Wilderness Committee vows to continue to engage in its public awareness campaign in the Walbran Valley.

“We’ll continue to monitor the Valley, take photographs and bring people in to see this world-class ecosystem up close,” Coste explained.

“Teal Jones’ own lawyers told the court there is nothing wrong with citizens being in the Walbran in accordance with the injunction, so we encourage people to get up there, conduct themselves lawfully and witness what’s happening.”

Image: Daniel J. Pierce

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Two Treaty 8 First Nations have applied for an injunction to prevent BC Hydro from cutting down trees containing eagle nests in preparation for construction of the controversial Site C Dam.

Several legal challenges to the $8.8-billion dam are pending, but the nest removal is scheduled to start September 1, according to a letter from BC Hydro to the Treaty 8 Tribal Association that gives notice of the “planned removal and destruction of Bald Eagle nests from construction areas of the Site C Clean Energy Project.”

Applications to the B.C. Supreme Court for an injunction and a judicial review have been made by the Prophet River First Nation and West Moberly First Nations. In a separate case, both bands are also seeking to overturn provincial approval for the dam.

The petition asking for an injunction says that Treaty 8 First Nations will suffer irreparable harm that cannot be mitigated by damages if the ground clearing and nest destruction goes ahead.

“Of particular concern is the clearing of the South Bank of the Peace River Valley, which represents extensive, severe and irreversible losses to ecological and cultural resources that support the meaningful exercise of Treaty rights,” it says.

Video by Damien Gillis , publisher of the Common Sense Canadian. 

Consultation on the permits allowing the nests to be removed was inadequate and BC Hydro proceeded with an “aggressive timeline for consultation,” according to the documents.

The plan to remove up to 28 nests between September and March, once the nests have been confirmed as inactive, means time is short.

“We are hoping that injunction happens sooner rather than later,” Treaty 8 First Nations member Susan Auger, said in a video made by Common Sense Canadian publisher Damien Gillis during a cultural demonstration on the banks of the Peace River earlier this month.

“Eagles are something that are very significant to myself and my culture. It’s something that has got my blood boiling that they are going to come and cut down eagle nests,” she said.

Studies show that there are 25 active eagle nests in the dam area, representing half of the large raptor nests in the Peace River corridor between Hudson’s Hope and the Alberta border.

However, BC Hydro plans to compensate for the removal or destruction of the nests by installing 38 artificial nesting platforms.

“Where feasible and safe, nests will be removed intact and relocated and installed on nest platforms,” says the BC Hydro letter.

It’s a solution scoffed at by George Desjarlais of West Moberly First Nation.

“I don’t know how they communicated with the eagles, how they spoke to them and got them to understand that this is your new home,” he said during the demonstration.

BC Hydro spokesman Dave Conway said that during Site C construction, BC Hydro will take great care to avoid or mitigate effects on eagle nests.

“During construction, we will not disturb active eagle nests and will only relocate eagle nests when they are inactive, as confirmed by a qualified professional,” he said in an e-mailed statement.

“For active nests retained through the construction period, a no-clearing buffer around each active nest will be implemented.”

In the Gillis video, Art Napoleon of Saulteau First Nation looks out over the north bank of the Peace River and points out that each island contains eagle nests.

“There’s no need for it,” he said.

“It looks to me like a test or a provocation.”

The First Nations are fundraising for the legal challenges through the website nosite-c.com.

“We are closing in on $100,000 and our goal is $250,000,” said Susan Smitten of the group Respecting Aboriginal Values and Environmental Needs (RAVEN).

“We are committed to making sure there’s access to justice. It’s a huge issue when you are going up against the deep pockets of BC Hydro and the provincial government.”

Image Credit: Tim Lumley

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