The Site C hydro dam in northeastern B.C. may be more than a year into construction, but the federal government still hasn’t determined whether the mega dam infringes on treaty rights — and, according to a Federal Court of Appeal ruling this week, the government isn’t obligated to answer that question.

The West Moberly and Prophet River First Nations filed a judicial review in November 2014, arguing the federal government should have determined if the Site C dam infringes on treaty rights prior to issuing permits for the dam, which would flood more than 100 kilometres of river valley.

Seems like a bit of a no-brainer, right? Turns out it’s not.

This week, the Court of Appeal upheld an earlier decision, which stated that the federal cabinet wasn’t required to determine if there was any  infringement of treaty rights, which are protected under the Canadian constitution.

“How can they authorize a project of this magnitude and not even turn their minds to whether it’s infringement given the history of this file?” Allisun Rana, legal counsel for the West Moberly and Prophet River First Nations, told DeSmog Canada.

“Our clients had been told that the Crown would make the determination on infringement at the end of the day.”

But according to the ruling, only the courts can decide whether there is an infringement of treaty rights.

“What the judges are doing is just shifting the question,” said Caleb Behn, a former lawyer whose mother is a member of West Moberly First Nation. “This doesn’t solve the problem. It shifts the blame.”

Panel Found Significant Adverse Effects on Hunting, Fishing and Trapping

The government-appointed panel that reviewed the Site C dam in 2014 concluded the project would likely cause significant adverse effects on fishing, hunting and trapping in Treaty 8 territory and that those effects could not be mitigated.

The joint review panel, however, was instructed not to make a judgement on whether these “adverse effects” constituted an infringement of treaty rights.

In May a group of 250 prominent scientists and academics from across Canada called on Justin Trudeau to halt construction of the Site C dam, saying the impacts of the project on indigenous rights had not been adequately considered.

In a letter, signed by the Royal Society of Canada, the group specifically requested the project be reviewed by Department of Justice to determine if aboriginal and treaty rights were being infringed.

In this week’s decision, the judge didn’t mince words while dismissing  the appeal with costs, meaning the two First Nations must  pay for the government’s costs as well as their own.

“Judicial review is not the proper forum to determine whether the appellants’ rights are unjustifiably infringed,” judge Richard Boivin wrote in his ruling.

First Nations Must Launch Civil Suit To Address Treaty Rights: Court

The decision means the First Nations must file a civil suit to address whether their treaty rights have been infringed. Civil suits of this nature include a full trial and often last several hundred days.

“If that is the only remedy, then that is not a very efficient or effective remedy,” Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation, told DeSmog Canada. “I find that troubling.”

The ruling leaves a gaping question: if the review panel can’t render judgement on treaty rights and neither can the federal government, then who is keeping guard?

“Whose responsibility is it to ensure decisions are not made that irrevocably harm constitutionally protected rights?” Tollefson said.

“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.”

Injunction Still A Possibility … But Clock is Ticking

If the nations decide to file a civil suit, they could also file an injunction application to stop work until the case has been heard — but that process is also flawed, according to Rana.

“The whole injunction test was not developed in an environmental or aboriginal law context,” Rana said. “It’s not aimed at … balancing the pros and cons that should be weighed when you’re looking at aboriginal or treaty rights.”

Take the Blueberry River First Nation, for example. The Treaty 8 nation in northeastern B.C. filed a civil action for treaty infringement based on the cumulative impacts of decades of industrial projects in their territory nearly two years ago. Blueberry River also filed two injunction applications. It lost the first one, and is still waiting for a ruling on the second one.

“What the court told them on the first one …  is that if your claim is that cumulatively all of these projects infringe on your treaty rights … well, how is stopping this particular authorization solving your problem? Because the problem that you’re asking the court to address at trial is the cumulative effects of all these projects,” Rana said.

In other words: it’s particularly challenging to win an injunction in cases of cumulative effects. Further to that, getting an injunction against a project that’s already well under construction is an uphill battle.

“An injunction against a project that is in the build-out stage could be very difficult to secure,” Tollefson noted. “Even if you could secure it, the band would likely have to guarantee BC Hydro against any losses that it would incur if the challenge is unsuccessful.”

West Moberly and Prophet River First Nations did seek an injunction against site preparation work on the dam in 2015. The court denied the injunction, saying there wasn’t evidence of “irreparable damage.”

If the nations were to file another injunction application before the cutting of old growth forest, for instance, they could win.

“If one had unlimited resources, they could simply keep filing injunction after injunction after injunction, but no one has unlimited resources, right?” Rana said.

The financial burden of having to challenge projects like this in court present a very real barrier to First Nations being able to defend their treaty rights.

#SiteC Dam Ruling Says a Lot About Canada’s Relationship with #FirstNations https://t.co/MtKv0ld1ml #cdnpoli #bcpoli #treatyrights

— DeSmog Canada (@DeSmogCanada) January 26, 2017

Legal Fight Could ‘Financially Cripple’ First Nations

“If the nations are required to go through a decade of litigation …  and bring injunction application after injunction application to ensure that the dam isn’t built, that would financially cripple and destroy these nations in trying to maintain and preserve their established rights,” said Emily Grier, another member of legal counsel for West Moberly and Prophet River First Nations.

If the government didn’t have to consider constitutionally protected treaty rights while determining whether to issue an environmental assessment certificate for the Site C dam, it raises the question: when do they consider treaty rights?

“At what point is the Crown obligated to stop and make sure that they’re not going too far, that they’re not crossing over into an infringement?” Rana said.

Tollefson said the decision sheds light on the role of cabinet in decision-making under federal environmental law.

“What this case powerfully underscores is that there’s very broad discretion” in cabinet decision-making, he said.

“One would have thought, however, that as part of that exercise in discretion that the impact on constitutionally protected rights would have been a mandatory consideration … but the court seems to say otherwise,” Tollefson said.

The First Nations can apply to seek leave to go to the Supreme Court of Canada. The Supreme Court will then decide whether to take the case.

There are also two other outstanding appeals. One regards the province of B.C.’s decision to issue an environmental assessment certificate in 2014 and makes the same argument as the federal case. The appeal was argued in December 2016 and is awaiting judgement. The other case is a judicial review of provincial permits — the court upheld the permits in a ruling last fall, but the First Nations have filed a Notice of Appeal.

“Court decisions don’t sound like much to a lot of people, but there’s a bunch of land that’s about to get lost essentially forever,” Behn told DeSmog Canada. “As a Treaty 8 person on both my mother and my father’s side…my ancestors hoped we could do better than this.”

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For the past couple weeks, Canadians have been wringing their hands about the suicide epidemic in the Pimicikamak Cree Nation in Cross Lake, Manitoba.   In the community of 6,000, six people have killed themselves in two months and more than 140 suicide attempts have been made in two weeks, leading the First Nation to declare a state of emergency.   Much of the blame has been placed on historic injustices — the very real fall-out of colonization and the residential school system.   But another historic injustice has also come to light: hydro development — which can be traced back to the Northern Flood Agreement of 1977. That agreement forced people from their homes and disrupted hunting, trapping and fishing.   In 2015, Manitoba Premier Greg Selinger personally apologized for the damage caused by hydro development to Cross Lake’s traditional land, way of life and cultural identity. He also acknowledged that Indigenous people were not properly consulted on the Jenpeg hydroelectric dam, 500 kilometres north of Winnipeg.

The apology followed a six-week occupation of the generating station by frustrated residents who said their traditional lands are regularly transformed into a floodway and the promised economic benefits of the dam never materialized.   After the apology, Chief Catherine Merrick said: “It is not possible to capture in words the damage done. Much of the harm is irreparable. It has forever changed our ways of life and our health.”

B.C. Pushes Ahead With Dam Despite Irreparable Damage to First Nations

If you’ve been following the story of the Site C hydro dam in B.C., you could be excused for feeling a very scary sense of déjà vu right about now.   A two-month occupation of land slated for the Site C dam in northeastern B.C. just ended after a court ruling in BC Hydro’s favour.   Indigenous protesters and local landowners camped out for two months in the Peace River Valley this winter to stop BC Hydro from logging at the site of Rocky Mountain Fort.   Four legal challenges to the 1,100-megawatt dam are still in the courts, but Premier Christy Clark has vowed to get the dam “past the point of no return” before the provincial election in May 2017.

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If built, the $8.8 billion dam will be the most expensive public project in B.C. history and will flood 5,000 hectares of land, the equivalent of about 5,000 rugby fields.   The joint federal-provincial panel asked to review the dam found it will have significant adverse effects on First Nations practices and heritage and that many of those effects cannot be mitigated.   Sound familiar?

‘A Denial To Our Identity’

Helen Knott camped out at Rocky Mountain Fort for three days a week for two months, taking vacation time from her job as a social worker.   The 28-year-old is a member of the Prophet River band and her great, great grandfather Chief Makannacha was the reluctant final signatory to Treaty 8 in 1899.

That treaty states that First Nations have the right to continue with their way of life “for as long as the sun shines, the grass grows and the rivers flow.” The contravention of the treaty for the Site C dam has led Amnesty International to get involved because of its violation of human rights.

Helen Knott at the Rocky Mountain Fort protest camp in the Peace River Valley.

Knott struggled with addiction and suicidal thoughts while she was growing up and says the fear of youth suicide is very present in the communities she works in. She worries the construction of the dam “will contribute to a larger sense of disconnection.”

“The land is a part of who we are as Indigenous peoples … continuing to destroy our land is a denial to our identity,” she told DeSmog Canada.

“Having young people witness us fight through the courts and through the Rocky Mountain Fort camp … and seeing the dam going forward any way, what does that say to them about their rights as Indigenous people?”

Cultural Factors Protect Against Youth Suicide: Study

Two B.C. researchers have looked closely at how cultural factors impact youth suicide rates.

They identified six markers of “cultural continuity,” including indications of whether each of B.C.’s 197 bands had: achieved a measure of self-government; litigated for Aboriginal title to traditional lands; accomplished a measure of local control over health, education and policing; and created community facilities for the preservation of culture.

Based on these factors, the researchers were able to establish an overall “cultural continuity index” ranging from 0 to 6.   First Nations communities that had all six markers of “cultural continuity” had suicide rates of zero. Yes, zero.   “First Nations communities that succeed in taking steps to preserve their culture, and that work to control their own destinies, are dramatically more successful in insulating their youth against the risks of suicide,” the researchers concluded.   The paper, “Cultural Continuity as a Protective Factor Against Suicide in First Nations Youth” by psychology professors Michael J. Chandler and Christopher E. Lalonde, notes that Canada’s young Indigenous peoples generally suffer the highest suicide rate of any culturally distinct population in the world. In B.C., that rate is anywhere between five and 20 times higher than that of the general non-Indigenous population.   But while some Indigenous communities experience epidemic rates of youth suicides, many others experience no suicide at all.   The researchers note:

“A promising key to unlocking the puzzle of why suicidal behaviors are so prevalent among the young is to be found in the characteristic pitfalls that mark the course of development that ordinarily leads young people to form some coherent sense of their own identity. A common obstacle facing young persons as they approach this identity-securing task is, our earlier research has shown, the joint necessity of constructing some sense of responsible ownership of a personal and collective past, and some commitment to one’s own future prospects. Without some sense of personal (not to mention cultural) continuity, it would appear, life is easily cheapened, and the possibility of suicide becomes a live option.”

 The researchers continue: “Nowhere is this more apparent than in the identity struggles of young Indigenous persons who are required, not only to clear the standard hurdles of normal growth and development, but are often forced to construct a sense of selfhood out of the remnants of a way of life that has been largely overthrown.”   Is it any wonder Indigenous youth sometimes feel helpless when their communities are being destroyed before their very eyes?

Trudeau's Commitment to a New Relationship with First Nations

Last weekend, Site C protesters tried to catch the eye of federal Justice Minister Jody Wilson-Raybould while she was in Victoria for the Liberal Party of Canada’s policy convention.   Wilson-Raybould, a member of the We Wai Kai Nation and former regional chief of the B.C. Assembly of First Nations, twice took part in the annual Paddle for the Peace before being elected as a Liberal MP last year.

Asked about calls for a moratorium on continued construction of Site C while legal challenges are before the courts, Wilson-Raybould said she could not speak to that issue, referring questions to the federal ministers of environment and the natural resources.

The fact is that the federal government is responsible for issuing several permits required for construction to continue. Let’s not forget that Prime Minister Justin Trudeau has promised a new relationship with First Nations.   “It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation," Trudeau said to First Nations chiefs in December.   If we want to begin to put an end to a vicious cycle that devalues the Indigenous way of life and contributes to social problems like youth suicide, the time to fulfill that sacred obligation is now.

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image: Garth Lenz

— With files from Judith Lavoie

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The Peace Valley Landowner Association is celebrating a small victory following a Federal Court decision that four applications for judicial reviews of the massive Site C dam, planned for the Peace River, will be heard this summer.

The Association and representatives of B.C. and Alberta Treaty 8 First Nations appeared before Federal Court last week to oppose a BC Hydro motion to have the cases heard in May because of the financial implications if the Site C construction schedule was delayed. BC Hydro wants to start work on the $8.8-billion project in June.

The Landowner Association and First Nations argued that, if the hearings were fast-tracked, there would be insufficient time to prepare legal arguments and cross-examination plans.

The court ruled that the applications for judicial review – brought by the PVLA, Mikisew Cree, Athabasca Chipewyan, Prophet River, Doig River, West Moberly and McLeod Lake First Nations – will be set for this summer, depending on court availability, and will be heard consecutively by one judge. That could stretch the hearings into late summer.

Ken Boon, PVLA president, said the decision shows the court is not going to rush or let BC Hydro set the agenda.

“The government knew when they made this decision in December that these court cases had already been filed,” he said.

It is not the Association’s problem that BC Hydro may have to adjust its’ schedule, he added.

First Nations, whose application names several federal ministers and BC Hydro, are claiming the dam will destroy their traditional territory and way of life and allege the federal government has violated their treaty rights by failing to consider the potential impact.

The PVLA application claims environmental approvals of the dam were seriously flawed and that the two levels of government failed to consider the joint review panel’s assessment of the economics.

Site C, the third dam on the Peace River, will flood 5,550 hectares of land and generate enough power for 450,000 homes, but the joint review panel found the power would not be needed until 2028 at the earliest.

Meanwhile, B.C. Supreme Court has ordered that petitions for a judicial review by the PVLA and B.C. Treaty 8 First Nations will be heard by a single judge.

The Association’s review petition is set to be heard April 20 and no date has yet been set for the B.C. Treaty 8 hearing.

The two courts are involved because the Site C project was approved by the federal and provincial governments.

As the Site C approval wends its way through the courts, the Canadian Geothermal Energy Association is continuing its campaign to persuade the government to look more seriously at the potential of geothermal and on Wednesday released technical information it compiled for the report “Geothermal Energy: The Renewable and Cost Effective Alternative to Site C.”

CanGEA chair Alison Thompson said that the geothermal unit energy cost of $56-$73 MWh compares positively to the updated Site C cost to ratepayers of $58-$61MWh.

“If the B.C. government treats geothermal energy as a priority, not an afterthought, geothermal will provide firm energy beginning in 2018 at a lower cost than Site C and in a manner that benefits ratepayers, taxpayers, First Nations, the economy and the environment, not to mention having a carbon footprint that is lower than Site C,” she said.

Image Credit: B.C. Government

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