West Moberly First Nations are not backing down from their long battle to stop the Site C dam following Tuesday’s announcement that they will engage in confidential discussions with BC Hydro and the provincial government, says Chief Roland Willson.

“Our position is that the dam should not go ahead,” Willson told The Narwhal. “We think there’s still an opportunity to kill the thing before they flood the [Peace River] valley.”

The B.C. government said in a press release that the discussions will “seek alternatives to litigation related to the Site C dam project.”

“We’re listening to what they have to say,” Willson said. “There may be an alternative [to Site C]. In the discussion we’re going to be talking about how they don’t have to destroy the valley. Our primary focus is going to be about trying to protect the valley.”

The West Moberly and Prophet River First Nations filed civil claims in January 2018 alleging the Site C dam and two previous dams on the Peace River unjustifiably infringe on their treaty rights.

The nations subsequently lost their application for an injunction to protect 13 areas of cultural importance for the Dunne-Za nations — including prime moose habitat, a rare old-growth white spruce and trembling aspen forest and two wetlands called Sucker Lake and Trappers Lake — from clear-cut logging for Site C.

But the judge ruled their treaty rights case must be heard by 2023, prior to Site C reservoir filling scheduled for 2024.

“Our position is that the dam should not go ahead. We think there’s still an opportunity to kill the thing before they flood the [Peace River] valley.” — Chief Roland Willson

West Moberly First Nations Chief Roland Willson.

Willson said the provincial government is under “enormous pressure from all over the place” to cancel Site C, which would flood 128 kilometres of the Peace River and its tributaries in the heart of Treaty 8 traditional territory, poisoning bull trout and other fish with methylmercury.

He pointed to a United Nations request that Canada suspend Site C dam construction until the project obtains the “free, prior and informed consent” of Indigenous peoples. Canada has until April 8 to report back to the UN Committee on the Elimination of Racial Discrimination outlining the steps it has taken to halt construction of the $10.7 billion dam.

Willson also highlighted a January study from the C.D. Howe Institute that concludes BC Hydro customers will be better off if the Site C dam is cancelled immediately, as well as the provincial government’s report on the first phase of a comprehensive review of BC Hydro, released in mid-February, which found B.C. has too much energy.

“There’s an abundance of power and we don’t need Site C,” said Willson, who has called the Site C dam “cultural genocide.”

“It was a political decision when [former premier Gordon] Campbell made it [in 2010]. It was a political decision when [former premier] Christy Clark approved it and it was a political decision when [premier] John Horgan decided to continue it.”

United Nations instructs Canada to suspend Site C dam construction over Indigenous rights violations

But the B.C. government told The Narwhal it is not reconsidering the Site C dam. “This does not impact planned construction timelines,” the Ministry of Indigenous Relations and Reconciliation said in an e-mailed statement.

“If successful, we are hopeful that an agreement could settle the ongoing litigation regarding Site C, [and] also help us to create a more positive relationship with Prophet River and West Moberly moving forward,” the statement said.

Willson said legal cases against Site C have cost the two nations more than $1 million, and the treaty rights case will cost “millions” more.

The nations raise money for Site C legal bills $100 at a time through their yellow stakes initiative.

Yellow stakes were used by BC Hydro contractors to mark the centre line for a provincial highway that must be relocated out of the Site C flood zone. The highway, whose relocation will cost at least $530 million, is slated to run past Indigenous burial sites and a special cultural area for First Nations, who have been gathering for millennia at the spot at the confluence of Cache Creek and the Peace River.

A rare, ancient tufa seep within the Site C dam flood zone. Photo: Garth Lenz

The Narwhal previously filed a Freedom of Information request asking BC Hydro for the total amount it had spent on legal fees related to the Site C dam. BC Hydro responded that the total amount was subject to attorney client privilege, and did not release the information.

BC Hydro financial reports show that the public utility paid $4.3 million over a recent one-year period (April 1, 2017 to March 31, 2018) to the Vancouver law firm Fasken (formerly known as Fasken Martineau DuMoulin LLP), which represents BC Hydro in the treaty rights case against Site C.

The firm, which has a long history of representing governments and resource companies in legal cases against First Nations, also represented BC Hydro during the joint federal-provincial environmental assessment hearings on Site C and on what it refers to as other “Aboriginal matters” related to Site C.

Fasken Martineau DuMoulin LLP received an additional $29 million from BC Hydro from 2011 to 2017, according to BC Hydro financial reports.

Three years into an estimated nine years of construction, most clear-cut logging for the Site C dam has taken place around the eastern flank of the Peace River Valley near Fort St. John, where the dam structure will be built. The rest of the valley is still relatively intact.

“Some of the old growth forest we’re trying to protect has been cut,” Willson said. “A tree will grow back. There’s nothing that can’t be undone.”

Low elevation forest in the Site C flood zone. Photo: Garth Lenz

Tim Thielmann, legal counsel for West Moberly First Nations and Prophet River First Nation, said he could not discuss the content or timing of the discussions.

“West Moberly and Prophet River continue to be opposed to the project,” Thielmann told The Narwhal.

“They continue to fight to prevent their treaty rights from being infringed by the cumulative effects of the three dams on the Peace River, and they are fully prepared to go to trial and obtain a judgement in advance of any Site C flooding if that is what they need to do.”

Sarah Plank, communications director for the Ministry of Indigenous Relations and Reconciliation, said the ministry can’t comment on the format and structure of the discussions.

“The discussions are in the early stages and they’re confidential,” Plank told The Narwhal.

The government said the parties “will continue trial preparations as discussions proceed on alternatives to litigation.” The parties appeared in court in late February and proposed a case plan for a 120-day trial commencing in 2022.

“We’re willing to listen to what they have to say, but we’re still filing our papers,” Willson said. “If we don’t like what we hear at the negotiating table we’ll walk away.”

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The Site C dam has lived many lives before its approval today by Premier John Horgan, from a twinkle in the eye of some BC Hydro engineers, to the target of multiple lawsuits, to two damning reports by the utilities regulator, to “the point of no return.”

Below, we’ve collected a few of the key moments in its life up to now.

• 1971: B.C. Hydro begins engineering feasibility studies for a potential third dam on the Peace River
• 1976: B.C. Hydro concludes that Site C, just upstream of Taylor, B.C., is the most feasible of the options on the table
• July 1980: B.C. Hydro releases an environmental impact statement, estimating the project might be completed by 1987 at the earliest; it also forecasts growth in power demand of 5.9 per cent for the following decade.
• Feb 13, 1981: The Globe and Mail reports that BC Hydro has applied for a water license to build Site C, then projected to cost $5.1 billion in 2017 dollars.
• May 3, 1983: BC Utilities Commission (BCUC) recommends against the project in a 315-page report, calling the utility’s demand forecasts “unreliable.”
• September 18, 1989: B.C. Hydro quietly revives Site C plan.
• November 30, 1993: BC Hydro CEO Marc Eliesen says, “Site C is dead for two reasons,” “The fiscal exposure is too great … the dam is too costly. Also it is environmentally unacceptable.”
• April 19, 2010: Premier Gordon Campbell announces the government is instructing BC Hydro to proceed with Site C. Cost is estimated at between $5 and $6.6 billion, though Campbell acknowledges the estimate is uncertain and based on old numbers. John Horgan, then energy critic for the NDP, tells the Vancouver Sun he believes the dam is unnecessary.
• May 17, 2011: Estimate of Site C cost pegged at $7.9 billion.
• May 18, 2011: John Horgan tells The Globe and Mail “The environment assessment process appears to be a sham.”
• August 2011: Environmental review begins.
• August 2013: Joint Review Panel (JRP) established to assess Site C for federal and provincial governments.
• October 14, 2014: Three-year environmental assessment complete. JRP concludes that Site C’s energy is not needed in the timeframe presented by BC Hydro. It recommends BCUC review Site C’s cost and alternatives. BC government ignores key JRP recommendations.

The Site C dam has lived many lives before its approval today by Premier John Horgan, from a twinkle in the eye of some BC Hydro engineers, to the target of multiple lawsuits, to two damning reports by the utilities regulator, to “the point of no return”. https://t.co/XxnUD4P68Z

— DeSmog Canada (@DeSmogCanada) December 12, 2017

• December 16, 2014: Site C receives provincial government approval. Cost now pegged at $8.8 billion.
• July 2015: Construction begins despite pending court cases launched by First Nations and Peace Valley landowners.
• January 2016: Premier Christy Clark vows to push Site C past the “point of no return.”
• January 23, 2017: Federal Court of Appeal dismisses lawsuit from West Moberly and Prophet River First Nations. Question of whether Site C violates treaty rights has still not been tested in the courts.
• May 9, 2017: NDP wins enough seats to form government, contingent on Green Party support. Green Party leader Andrew Weaver expresses strong opposition to Site C while Horgan declines to take a position, repeating a campaign promise to send project for independent BCUC review.
• May 15, 2017: Project has spent $1.75 billion.
• November 1, 2017: BCUC delivers its report saying Site C behind schedule and over budget, and power not likely to be needed. Says cost may exceed $10 billion.
• November 30, 2017: Expert panel briefs NDP government on Site C.
• December 11, 2017: NDP government greenlights Site C dam. Cost now pegged at $10.7 billion.
• December 11, 2017: Two Treaty 8 First Nations announce they will seek an injunction to stop work on Site C and will launch a lawsuit in BC Supreme Court on the grounds that Site C violates treaty rights.

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The West Moberly and Prophet River First Nations will seek an injunction against the Site C dam, which received a green-light from the B.C. government Monday.

The project, which will now cost an estimated $10.7 billion, has been vigorously fought by both nations, whose traditional territory will be flooded by the Site C reservoir.

In addition to a court-sponsored injunction, the nations also announced they will pursue a civil case against the project for treaty infringement.

“It was John Horgan’s NDP that demanded a Site C inquiry by the B.C. Utilities Commission, and the results they received from it were clear: no need for the power, better alternatives once we do, and no advantage to ratepayers to proceed,” Chief Roland Willson said in a statement. “With those findings, the only responsible choice was to immediately stop destroying the Peace River valley.”

A three-month investigation by the B.C. Utilities Commission found unresolved questions remained regarding Site C construction and the infringement of treaty rights.

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. Although the two nations have brought and lost legal challenges in B.C. courts, the commission found the question of rights infringement is far from settled, saying the Crown would ultimately bear the risk of civil litigation should the province decide to continue with Site C.

Financial compensation would not be without precedent. The James Bay and Northern Quebec Final Agreement awarded $225 million (nearly $1 billion today) to Indigenous groups affected by hydro development there. The B.C. First Nations warned they would pursue a similar settlement if Site C were approved.

During a press conference 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.

BREAKING: Two B.C. First Nations are asking for an injunction against #SiteC as they prepare a civil suit https://t.co/tBahBKlEUU pic.twitter.com/HIhVgS5R3O

— DeSmog Canada (@DeSmogCanada) December 11, 2017

“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 said 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. To talk about resource sharing when all the resources are gone is not true reconciliation.”

“We have a lot of work to do. This is a very divisive issue,” Horgan said.

“They have more than what they need in front of them to stop this project,” West Moberly First Nations chief Roland Willson told DeSmog Canada.

Willson said his nation “saw the writing on the wall” when Horgan declined to stop construction of Site C pending an independent review of the project by the watchdog B.C. Utilities Commission.

“I don’t think they had any intention of cancelling it,” he said. “I was hoping for so much more.”

“This province doesn’t have billions of dollars to waste on a make-work boondoggle for power we don’t even need,” Chief Lynette Tsakoza of Prophet River First Nation said in a statement.

She pointed to a filmed interview with Horgan’s from 2014 as indication of her nation’s legal standing.

“First Nations in the region have entrenched constitutional rights,” Horgan stated in that interview. “Not just the requirement for consultation and accommodation — which we always hear about when we’re talking about resource projects — but they have entrenched constitutional rights to practice hunting and fishing as before.”

“And that’s going to be violated by this dam.”

With files from Sarah Cox.

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.

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

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.

BC Hydro violated its environmental assessment certificate for the Site C dam project, according to a B.C. government report released Thursday.

The inspection report, from the B.C. Environmental Assessment Office, detailed how BC Hydro failed to develop acceptable mitigation measures for an aboriginal sweat lodge and suspected burial site, and cannot legally proceed with a bridge related to Site C highway relocation until it does so.

This means BC Hydro’s controversial highway re-location will need to be assessed again by the Environmental Assessment Office and an alternate route long supported by the First Nations may be considered after all.

“BC Hydro has not developed mitigation for known cultural values in the Bear Flats area, including the sweat lodge (and nearby camp) and the potential burial site…” noted the report, which points out that BC Hydro is well aware of the cultural importance of the area for local First Nations.

BC Hydro has been warned of non-compliance with regards to the 455-metre bridge BC Hydro planned as part of the highway relocation in an area of the valley called Cache Creek-Bear Flats, according to the 54-page report issued following a five-month investigation.

ICYMI: First Nations Chiefs Say Site C Highway Route Will Desecrate Graves, BC Hydro Disagrees

“As BC Hydro has been advised that the [Cultural Resources Management Plan] is not ‘to the satisfaction of’ the EAO and that it must be updated prior to conducting construction activities that may impact known cultural resources, it may be a non-compliance if BC Hydro were to proceed to conduct construction activities that may impact known cultural resources,” the report reads.

West Moberly First Nations Chief Roland Willson welcomed the findings, saying that BC Hydro has been “out of line” with his nation and the Prophet River First Nation. They jointly filed a complaint with the EAO in early April.

“A Crown Corporation should be setting the bar on how other [resource project] proponents have to deal with First Nations,” Willson said.

“They’re supposed to be setting the benchmark on this thing. What they’re doing is lowering the benchmark.”

West Moberly Chief Roland Willson. Photo: Jayce Hawkins | DeSmog Canada

Willson said the two First Nations repeatedly asked BC Hydro and the former B.C. government to use a short-listed alternate route for the Site C highway relocation and Cache Creek bridge to avoid “desecrating” aboriginal grave sites and to protect the sweat lodge and traditional gathering place at the confluence of Cache Creek and the Peace River.

ICYMI: ‘Stop the Losses’: Former BC Hydro CEO Calls for Cancellation of Site C Dam

But BC Hydro contractors clear-cut much of the Cache Creek area in February and March, after expropriating property from third generation Peace Valley farmers Ken and Arlene Boon, leaving the land looking like a “moonscape,” according to Willson.

Willson said he was at a meeting in Vancouver in March with BC Hydro representatives to discuss the issue of the Site C highway relocation when the forest near the sweat lodge and grave site was mulched.

“They were cutting the right of way as we were down there trying to solve the issue,” Willson said. “Sneaking small pox into blankets and handing them to us, it’s the same damn thing as how they’ve been treating us.”

“They just ignore us, belittle us, disregard anything we have to say.”

A lawyer for the First Nations said about 200 letters have been sent to the Environmental Assessment Office and BC Hydro by the First Nations on this issue alone.

At the time of publication BC Hydro media relations spokesperson Mora Scott had not replied to a request for comment.

Last year, BC Hydro apologized for the devastating impacts that the W.A.C. Bennett dam had on First Nations, who lost villages, food sources, burial grounds, spiritual areas, gathering places and transportation routes when the dam’s reservoir flooded their traditional territory.

According to BC Hydro documents, the $8.8 billion Site C dam would destroy 42 sites of cultural and spiritual significance for First Nations, including burial grounds, medicine collection areas, offering places for ceremonies and prayers, and locations associated with oral histories and place names.

Willson said one aboriginal burial site beside the chosen highway route was already known by First Nations and recorded by the B.C. government’s archeology branch, but another site along the new highway’s centre line was only discovered last year.

Logging and construction along the Peace River in September 2016. Photo: Garth Lenz | DeSmog Canada

First Nations brought in an archeologist who confirmed the site had all the hallmarks of a Dunne-Za grave — a depression in the ground, high on a hill, at the confluence of two rivers “where bodies are usually laid to rest, so that they have a view.”

Dunne-Za custom does not permit the disturbance of graves, and the First Nations have said the only acceptable mitigation is to move the highway to the short-listed route.

The EAO report casts new doubt on former premier Christy Clark’s claim in June that even a slight delay in re-routing the provincial highway out of the Site C flood zone and building a new highway bridge over Cache Creek — a delay requested by John Horgan shortly before he became premier — would tack on an extra $600 million to Site C’s $8.8 billion price tag.

In fact, BC Hydro is in danger of non-compliance until it makes changes to its Heritage Management Resource Plan and Cultural Management Resource Plan to ensure mitigation measures for the sweatlodge and gravesite are developed prior to construction. The plans are are “not to the satisfaction of the EAO,” said the report.

.@BCHydro Violated Rules for Protecting #Indigenous Sites, Must Re-Evaluate #SiteC Bridge Construction https://t.co/XDg7lwPWWq #bcpoli

— DeSmog Canada (@DeSmogCanada) August 31, 2017

The report said BC Hydro must either adopt First Nations’ recommendations for avoiding harm to the sweat lodge and suspected gravesite — moving the highway to the short-listed route to avoid the area entirely — or develop new mitigation measures that meet the requirements of the EA certificate.

Any new mitigation measures must include “a detailed explanation with supporting analysis regarding why the mitigation proposed by the complainants is not necessary, is impractical, or is otherwise unreasonable,” said the EAO.

BC Hydro’s choice of highway route, according to the First Nations, would create disturbances that include “noise from truck traffic, safety (having a highway within the area where ceremony participants, including children, walk between rounds, etc.) as well as the destruction of the camp site itself, which with [the] feast house is tied to the enjoyment of the sweat and related cultural practices.”

The report determined that the general highway realignment route is consistent with the Site C environmental assessment certificate. But the bridge over Cache Creek is not, and BC Hydro must apply for an amendment to its environmental assessment certificate because it has changed the location and length of the bridge from the design originally approved, according to the EAO report.

BC Hydro has said its preferred highway route at Cache Creek was cheaper than the short-listed alternative, would affect less agricultural land and would allow for more passing opportunities for drivers.

Yet the Crown Corporation refused to release detailed information — called a Multiple Accounts Evaluation — about the relative costs and merits of the two routes, despite repeated requests from the First Nations and the Peace Valley Landowners Association, representing 70 landowners affected by Site C.

“They have a very viable option that is a win-win-win for everybody that they just refuse to acknowledge,” said Willson.

Cache Creek is one of six bridges in the Peace River Valley that will have to be rebuilt as part of a six-section, 30-kilometre highway relocation for Site C that BC Hydro documents said would cost approximately $530 million.

The area around Bear Flats-Cache Creek has “profound significance as Treaty 8 people have gathered, camped, hunted and practiced ceremony here since time immemorial,” according to a 2013 BC Hydro report that quotes NENAN, the Nenan Dane-zaa Deh Zana Child and Family Services Society, which holds annual youth and elders gatherings at Bear Flats.

Former BC Hydro CEO Jessica McDonald, who was fired last month by the new B.C. government, said in April that BC Hydro was  “absolutely committed to meeting the terms and conditions of it environmental assessment certificate.”

“A successful project from my perspective…is environmentally sound and meets the standards that we are held to,” McDonald said in an interview with Stuart McNish for the broadcast Conversations That Matter, a partner program with the Centre for Dialogue at Simon Fraser University.

EAO Administrative Inspection Report Regarding Site C Hwy 29 Alignment_30Aug2017 by DeSmog Canada on Scribd

— With files from Sarah Cox

Photo: Bear Flats by Garth Lenz

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 Supreme Court of Canada has refused to hear an appeal brought by the West Moberly and Prophet River First Nations that argues the federal government failed to consider their constitutionally protected treaty rights when approving the $9 billion Site C dam in northeast B.C.

The rejection by Canada’s highest court has members of Treaty 8 First Nations wondering who bears the responsibility for determining whether or not a major project like Site C infringes on their rights as a treaty nation.

“This is very sad news,” Roland Willson, Chief of the West Moberly, told Desmog Canada.

“We have a treaty that is a part of the Constitution of Canada and there is no legal mechanism to protect the constitution, that piece of the constitution,” he said.

“Every other part of the Constitution they won’t tread on except the part that’s got to do with Indians — they’ll walk all over that.”

Image: Chief Roland Willson at the 2016 Paddle for the Peace. Photo: Carol Linnitt | DeSmog Canada

Infringement of Treaty Rights Not Adequately Considered

Caleb Behn, a former lawyer whose mother belongs to the West Moberly, said the decision has disturbing implications for the promise of reconciliation between the government of Canada and indigenous peoples.

“For the Supreme Court to think this appeal wasn’t even worth hearing confirms to me what my loyalty and that of my grandfather is worth to the Crown,” he said.

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 West Moberly and Prophet River nations filed 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.

The Supreme Court has now refused to hear the West Moberly and Prophet River First Nations’ appeal of that ruling.

“I’m a Treaty 8 person with a law degree, so I never allowed myself to get truly hopeful, because I’m too familiar with what the law really does to indigenous people, people of colour,” Behn told DeSmog Canada.

“This decision desecrates in my view something much more important that just the decision of the governor in council; this is how little regard sacred treaty, sacred balance, sacred law and natural law are worth in the 21st century,” he said.

A federally appointed Joint Review Panel 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 if 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.

Image: Site C construction. Photo: Garth Lenz | DeSmog Canada

Civil Suit Can Address Site C Damages After the Fact

Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation, previously told DeSmog Canada the two nations can file a civil case to determine if treaty rights have been infringed.

“If that is the only remedy, that that is not a very efficient or effective remedy,” he said.

“Whose responsibility is it to ensure decision are not made that irrevocably harm constitutionally protected rights?”

Chief Willson said a civil suit may be the only option to determine whether Treaty 8 is violated by Site C. The dam reservoir will flood sacred graves and spiritual sites as well as prized habitat

“There is no mechanism to protect the treaty. All we can do is file for damages now,” Willson said.

“This is the insanity of this whole thing: you can’t file a civil claim until there are damages. We have to sit here and wait until they destroy the valley and then file.”

“So they can approve every hair-brained project that comes up now and they only thing we can do is sue for damages,” Willson said.

“What’s the point of a consultation process?”

Tollefson said relying on a civil suit is a losing battle as long as Site C construction continues.

“You wonder whether that task has been assigned to any arm or branch of government or whether in the end all that is left is for this nation to undertake is a very complicated and lengthy proceeding to pursue that argument — which, without an injunction, will be a futile quest.”

Behn added the legal system plays off the disadvantage of indigenous peoples whose rights have long been undermined through Canada’s colonial past.

“We have to suck it up, wait for damage, and re-enter the fray in the same process that has proven itself to be incapable of providing justice for indigenous people.”

New B.C. Government a Final ‘Hail Mary’ for Fight Against Site C

The promise of a new government in B.C. is Chief Willson’s last hope to stop Site C, he said.

The NDP and Green parties have agreed to work together to topple the B.C. Liberal-led government and send Site C for immediate review with the B.C. Utilities Commission, a process the Liberals vetoed.

“That’s our hail Mary,” Willson said.

“We’re all sitting here praying there’s a vote of non-confidence and it will hit the pause button on Site C and stop what’s going on in Bear Flats,” he said.

“That’s the tragedy of this whole thing, the B.C. government is destroying our valley for a completely unnecessary project.”

NDP Party Leader John Horgan formally introduced a motion of non-confidence in the house, Wednesday and the outcome of that motion, whether a new NDP-led government or a re-election, is expect to be known by Friday.

Update July 4, 2017: The headline of this piece previously stated the case had been 'struck down' by the Supreme Court of Canada. It has been updated to more accurately reflect the legal situation.

Image: Valeen Jules at the 2016 Paddle for the Peace. Photo: Jayce Hawkins| DeSmog Canada

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The route chosen by BC Hydro for a Site C dam highway relocation will “desecrate” a First Nations burial ground and destroy a culturally significant site used by the Dunne-za people for millennia, says West Moberly First Nations Chief Roland Willson.

“This is a very serious matter,” Willson wrote in a letter to B.C. Transportation Minister Todd Stone, co-signed by Prophet River First Nation Chief Lynette Tsakoza. “Digging up graves is not acceptable in our custom.”

Willson told DeSmog that the graves are in an area of the Peace River valley known locally as Bear Flats/Cache Creek, which BC Hydro plans to clear cut this winter for the first phase of a $530 million project to move 30 kilometres of a provincial highway out of the Site C dam flood zone.

Called as tluuge by the Dunne-za, or Beaver people, an ethno-linguistic grouping within the Treaty 8 Tribal Association, the area slated for the first part of the highway realignment contains known B.C. archaeological sites, a natural spring, a sweat lodge, and a campground used by First Nations for elder and youth gatherings.

“The Dunne-Za people have been using Bear Flats for thousands of years and we’re still using it today,” Willson said in an interview.

“The desecration of burial sites is a very serious matter. There’s absolutely no reason for them to disrupt those graves. They can move the highway over.”

Chief Roland Willson from the film River Interrupted. Credit: Hawkins Film.

According to BC Hydro itself, the Bear Flats/Cache Creek area is classified as an “archeological site complex,” an area noted for its high density of archeological sites.

Eighteen archeological sites at the Bear Flats/Cache complex will be affected by the $8.8 billion Site C project, including four Class 1 sites and 10 Class 11 sites.

The Bear Flats/Cache Creek area, where highway construction is imminent. Credit: Garth Lenz.

In July 2015, BC Hydro received an eight-year permit from the B.C. Ministry of Forests, Lands and Natural Resource Operations (FLNRO) to “alter” 163 archeological sites for Site C, including for the construction of permanent roads, clearing, surface stripping, excavations and inundation from the reservoir. The permit says all work must cease if human remains are found and the Archaeology Branch must be contacted for further direction.

In a statement e-mailed to DeSmog, BC Hydro said it has undertaken “extensive archeological fieldwork including extensive subsurface shovel testing” and has not found  “any specific burial locations that would be directly affected by the Highway 29 alignment” at Bear Flats/Cache Creek.

“We take the potential disturbance of burial sites with the utmost seriousness,” BC Hydro said in the statement.

The Crown corporation said it has extended repeated invitations to local First Nations to share specific information about potential burial sites they believe are in the Site C project area and has funded traditional land use studies for First Nations that have “not resulted in such information being shared with BC Hydro.”

A BC Hydro Heritage Resource Assessment report notes that four Treaty 8 First Nations believe there are burial sites in the vicinity of Bear Flats.

Testimony given by four Treaty 8 First Nations to the Joint Review Panel that examined Site C for the federal and provincial governments recounted how the Bear Flats area was traditionally used as a gathering spot because it had good habitation sites, proximity to ceremonial and sacred areas, good hunting and fishing opportunities, a nearby freshwater spring and multiple trails and transportation routes.

“Many of the trails which criss-crossed the Peace River valley came into or close to this gathering place, and were often used as horse pack trails by families on their seasonal rounds,” the testimony read.

“Historically we were hunter gatherers and there were certain places like Bear Flats where we’d come together,” Willson said.

Willson said he met with Minister of Aboriginal Relations John Rustad in July and again in October, in an effort to find a solution. He said he also met with FLNRO Minister Steve Thomson in October, and followed up with letters to the two ministers asking for an alternate route for the 8.5-kilometre Bear Flats portion of the highway realignment, in addition to writing to Stone and BC Hydro in early November with the same request.

“We still haven’t heard anything back.”

Willson said a second route shortlisted by BC Hydro would avoid adverse effects to First Nations’ “ancestral belongings and burial” and protect the homes of local farmers such as Ken and Arlene Boon, who live on a hill just above some of the archeological fieldwork sites. The Boons, along with seven other landowners at Bear Flats/Cache Creek, were informed in March that they must sign over their land to BC Hydro by the end of this year or face expropriation for the highway re-alignment.

“They don’t have to kick the Boons out just before Christmas,” said Willson. “There’s no reason for it.

Arlene Boon out for what could be her last harvest on the Bear Flats farm that’s been in her family for three generations. Photo: Garth Lenz.

In October, the West Moberly and Prophet River First Nations launched the Yellow Stakes campaign on the Boon’s farmland to raise money for their ongoing court cases against Site C. For each $100 donated to the First Nations legal challenges, a yellow stake is driven into the ground beside the Boon’s farmhouse, along the centre line for the Highway 29 relocation.

More than 300 stakes, similar to the ones BC Hydro contractors placed throughout the Bear Flats area to demarcate the highway’s new centre line, have been hammered into the earth, including a stake personally planted by Perry Bellegarde, the national chief of Canada’s Assembly of First Nations.

In their letter to Stone, the two First Nations chiefs said an alternate route would address “many of the substantive issues and concerns” regarding that portion of the highway relocation. “Our alternative routes also eliminate the need to remove the local farmers from their homes and, as such, have an added benefit for the general population,” they wrote.

“We have made considerable efforts to identify and communicate how the proposed realignment of Highway 29 will cause significant adverse effects to our treaty rights,” the chiefs said in their letter to Rustad. “We have also put a considerable amount of effort into finding solutions…The province, however, has refused to engage our nations on such matters for over three months.”

Ken Boon, who has been told he’s going to have to sign an agreement with BC Hydro by Christmas, so a highway can be built through his farm. Credit: Garth Lenz.

In response to questions about the highway re-alignment, BC Hydro spokesperson Dave Conway e-mailed a link to a BC Hydro information sheet that outlines why the route along the banks of the future Site C reservoir was selected for the Bear Flat highway relocation instead of the inland option requested by First Nations and Peace Valley landowners. According to BC Hydro, the route along the reservoir’s banks will increase the length of passing opportunities for drivers and has less of an impact on agricultural land and better geotechnical conditions.

The reservoir for the Site C dam, currently in the early stages of construction, will flood more than 100 kilometres of the Peace River and its tributaries, including Cache Creek, a wide-bottomed valley where prickly pear cacti grow and arrowheads and fossils, including part of a woolly mammoth tusk, have been found.

Earlier this year, the Peace Valley Landowners Association asked BC Hydro for a copy of the “Multiple Accounts Evaluation” that demonstrates how the highway relocation route was chosen. Association president Ken Boon said instead of receiving a copy of the evaluation the 70 landowners who will be affected by Site C were given only “a few vague reasons to justify the route.”

New Democratic Party transportation critic Claire Trevena also said has not received any answers to questions she sent to Stone in an August letter regarding the highway route selection at Bear Flats/Cache Creek.

Among other questions, Trevena asked if the ministry had the right to review the route options in light of costs and social impacts, if there were financial risks to the Crown that could arise from the choice of routes, when the ministry would become responsible for the new highway route and if the minister knew the full costs of both route options.

“We’re somewhat stymied because we’re not in the Legislature so I can’t ask questions directly of the minister,” Trevena said in an interview, referring to Premier Christy Clark’s cancellation of the fall session of the B.C. legislature.

“It’s extraordinarily difficult when we’re talking about something this serious and we not have recourse to the minister. Democracy can’t work and people’s best interests can’t be served when the government is effectively in hiding.”

DeSmog contacted the Ministry of Aboriginal Relations and Reconciliation, which said comment should come from the Ministry of Forests, Lands and Natural Resource Operations (FLNRO). The Ministry of Transportation did not respond to questions, including one asking if the cost of the highway realignment has changed from the $530 million previously reported by BC Hydro. And FLNRO, for its part, said the government’s statement on the issue would come from BC Hydro.

Main image: BC Hydro archaeologists on the Boon family farm. Credit: Garth Lenz.

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A caravan of Treaty 8 First Nations fighting the Site C dam arrived in Ottawa Tuesday, calling on Prime Minister Justin Trudeau to halt the $9-billion project they say violates treaty rights.

The group arrives on Parliament Hill after a cross-Canada journey that brought them to the Federal Court of Appeal in Montreal on Monday, where a legal challenge by the West Moberly and Prophet River First Nations was heard.

“Anyone who reads the environmental assessment report can see that the Site C dam is an indisputable threat to our rights,” Roland Willson, chief of the West Moberly First Nation, said.

“Our nations are deeply grateful to all the organizations and individuals whose support has enabled us to continue this battle, but the fact remains that we wouldn’t have to go these lengths if the Trudeau government would act on the promises it has made to uphold our treaty, the Canadian constitution, and the UN Declaration [on the Rights of Indigenous Peoples].”

In July the Trudeau government issued two federal permits for the controversial project, a move that angered a broad coalition of Site C opponents and First Nations that say the permits broke the federal Liberals' promise of a renewed nation-to-nation relationship with First Nations. The permits apparently generated some controversy within the federal Liberal party, with Indigenous Liberal MP Robert-Falcon Ouellette from Winnipeg Centre coming out against the project and questioning whether adequate consultation with First Nations in B.C. was carried out.

Despite growing backlash, Trudeau has stayed quiet on the mega hydro dam. 

Most recently, the Assembly of First Nations came out strongly against the  dam, saying it violates the Canadian constitution, which enshrines aboriginal rights under section 35, as well as the UN Declaration, which has a clause about "free, prior and informed consent."

"Why don't they respect and follow their own constitution? Section 35. Existing aboriginal treaty rights," AFN National Chief Perry Bellegarde said in an interview with the Canadian Press. "It really comes back to building a healthy, respectful relationship with indigenous peoples and we just don't see it happening here in this instance."

.@JustinTrudeau Silent as B.C. #FirstNations Take #SiteC Dam Fight to Federal Court #bcpoli #cdnpoli https://t.co/qQssgjoEHz

— DeSmog Canada (@DeSmogCanada) September 14, 2016

An environmental assessment found the project — which will flood 83 kilometres of Peace River valley and eliminate 5,500 hectares of primarily high-value agricultural land — would have severe, permanent and irreversible impacts on First Nations cultural and territorial practices, but the federal and provincial governments approved it in 2014.

Treaty 8, signed with the federal government in 1899, protects First Nations' right to hunt, fish, trap and gather medicines in perpetuity.

“The Peace River valley is one of the last places we can go out on the land with our elders and learn the stories and traditions that make us who we are,” Helen Knott, a member of the Prophet River First Nation who traveled to Ottawa with other community members, said.

“If governments can get away with simply ignoring our treaty, we’ll soon be left with nothing.”

First Nations fighting the project have received high-profile support from a large consortium of Canadian academics, including the Royal Society of Canada, which agrees the project infringes on indigenous rights.

An independent environmental assessment performed by the academics concluded the dam would “severely undermine” the ability of First Nations to carry out their cultural practices. Their assessment also found Site C is the most environmentally destructive project ever considered under the Canadian Environmental Assessment Act.

In August, international human rights watchdog Amnesty International released a report saying the Site C dam violates indigenous rights. Amnesty called on BC Hydro to halt all construction until legal challenges brought against the project by First Nations are heard in the courts.

The Amnesty report is called “The Point of No Return,” referencing a statement by B.C. Premier Christy Clark that the Site C damwill be brought “past the point of no return" before the next election.

First Nations and local landowners fighting the project hoped the Trudeau government would withhold federal permits, allowing time for legal challenges to make their way through the courts, but that hope was lost when two federal permits were granted in July.

NDP Indigenous and Northern Affairs Critic Charlie Angus joined First Nations leaders on Parliament Hill to condemn the Site C project and the federal government's recent permits.

“Why are we even here? Why is this necessary? We have a Prime Minister that promised a new relationship, a new nation to nation relationship,” Angus said. “We have a justice minister — for the first time ever — a Justice Minister who has been on the record saying a project like Site C runs roughshod over indigenous rights."

“If it’s before the courts, then why the hell did you sign those permits? That’s the question.” 

Lynette Tsakoza, Chief of the Prophet River First Nation, said the whole situation casts a poor light on the environmental assessment process. 

“The federal government’s actions in this case have eroded First Nations trust in regulatory processes that impact upon our rights,” she said.

Craig Benjamin, indigenous rights campaigner with Amnesty International Canada, said Canadians should be angry with the federal government’s treatment of this project.

“Anyone concerned about justice and human rights should be outraged by the federal government’s claim that the wide array of serious harms to First Nations this project would entail are ‘justified,’ especially given the fact that the need for the Site C dam remains in question and less harmful alternatives have never been properly considered,” Benjamin said.

In an unprecedented interview with DeSmog Canada, Harry Swain, chair of the joint federal-provincial panel tasked with reviewing the Site C project, said the government erred in approving the project because there was no demonstrated need for the electricity and alternatives to the dam hadn’t been fully explored.

Swain added the panel was asked to catalogue First Nations treaty and aboriginal rights, “but we were not to pass an opinion on them,” he said.

“We were not to say whether consultation had been adequate and so on and forth. If you are forbidden from talking about that, you can not come to a conclusion about the overall project,” he said.

More than 85,000 signatures calling on the federal government to halt the project have been collected by civil society organizations.

Amara Possian, campaign manager with LeadNow, a democracy advocacy organization fighting Site C said pressure is mounting on the federal government  to address concerns about the project.

“The federal government’s public commitment to a new relationship with Indigenous peoples has clearly resonated with Canadians,” she said.

“But the public is demanding more than just words. They government’s promise to uphold the treaties, the constitution and the UN Declaration requires concrete action when these rights are threatened.”

Image: Prime Minister Photo Gallery

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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

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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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