West Moberly First Nations will proceed with a Site C dam “megatrial” following six months of confidential talks with the B.C. government and BC Hydro aimed at avoiding litigation, chief Roland Willson announced on Tuesday. 

“They’re not going anywhere,” Willson told The Narwhal. “It’s essentially kicking a dead horse. … They wanted to have discussions and now we’re not talking anymore. We’re going to court.” 

In January 2018, West Moberly First Nations and Prophet River First Nation filed civil claims alleging that the Site C project and two previous dams on the Peace River unjustifiably infringe on their treaty rights.  

West Moberly First Nations subsequently lost an 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 the dam.

But the judge ruled their treaty rights case must be heard by 2023, prior to scheduled flooding of the Peace River Valley the following year. 

Tim Thielmann, West Moberly First Nations legal counsel, said the ruling leaves the door open for the court “to impose an eleventh-hour cancellation or injunction onto the project and to prevent the flooding of the Peace River if the First Nations are successful in their treaty infringement claim.” 

Chief Roland Willson of West Moberly First Nations. Photo: David Moskowitz

NDP government’s position a ‘profound conflict’ 

The Site C dam would flood 128 kilometres of the Peace River and its tributaries, about the equivalent distance of driving from Vancouver to Whistler. 

It would destroy First Nations burial grounds and culturally significant areas, some of Canada’s best farmland, habitat for more than 100 species at risk of extinction and the last intact section of the Peace River Valley still available for Treaty 8 members to engage in traditional practices.

At trial, B.C. Premier John Horgan is expected to defend the 2014 decision made by former Liberal Premier Christy Clark to proceed with the Site C project, a decision West Moberly First Nations says infringed Treaty 8, according to a news release the nation issued on Tuesday.  

“You have this surprising situation where the provincial government is finding itself on a path to a large trial in which they will be defending the position that they have been fighting,” Thielmann told The Narwhal. 

Thielmann pointed to a statement Horgan made shortly before Clark’s decision to proceed with construction of the Site C dam. In 2014, Horgan said in a filmed interview that First Nations in the Peace region had entrenched constitutional rights that were “going to be violated by this dam.” 

“In his announcement to proceed with the dam in 2017 he still said that Site C should never have been started,” Thielmann added, pointing to other senior NDP cabinet ministers who made similar statements. 

In a public Facebook post, for instance, B.C. Attorney General David Eby described the Site C dam as a “terrible situation of a massive public infrastructure investment without any apparent customer for the electricity it will produce.”

“That’s a profound conflict in their current position,” Thielmann said. “Now they have to go to court and decide what their position will be on the Christy Clark decision to approve the dam in 2014.”  

It’s a no-win situation for the NDP government because if they “own up to the statement they have made on record,” that approval of the dam was a mistake and an infringement of Treaty 8, then “presumably they wouldn’t be fighting this case in trial,” Thielmann said. 

But if they agree with West Moberly First Nations it will open them up to whatever orders the court chooses to impose, he pointed out.

“If they begin defending the Christy Clark position to approve the dam it will have untold political costs internally to the party and amongst many of the NDP voters and others in British Columbia that believe, like Premier Horgan apparently did, that this was a profound mistake.” 

Site C dam still shrouded in secrecy

Willson said Horgan should have stopped construction of the “boondoggle” dam after the NDP came to power in July 2017. 

Instead, Horgan green-lighted the dam six months later — following intense lobby efforts by construction trade unions that donated generously to the NDP —  on the grounds the project was past the point of no return, a claim debunked by independent energy experts. 

“Right from the beginning we thought this whole project was a sham,” Willson said. “We’ve been railroaded. … There’s billions and billions being spent on a project that is totally not needed. And the environmental footprint and the devastation that this thing is going to create is sad.” 

Willson said he does not believe BC Hydro will make the scheduled date next year for diverting the Peace River so construction of the dam structure can begin. The missed deadline would add substantially to the escalating cost of the dam, the largest publicly funded project in B.C.’s history. 

“Everything’s in the shadows,” Willson said. “This was supposed to be a public process and they’re keeping information from people.” 

The Boon family farm at Bear Flat/Cache Creek in the Peace River valley, which will be flooded for the Site C dam. Bear Flat/Cache Creek is a culturally significant area for First Nations, who have gathered here for millennia. Photo: Garth Lenz / The Narwhal

Last year, international hydro dam expert Harvey Elwin described the high level of  confidentiality surrounding the Site C hydro project as “extraordinary,” saying he had never encountered such secrecy during his five decades designing, developing and managing large hydroelectric projects, including China’s Three Gorges dam.

In an affidavit for the West Moberly First Nations injunction application, Elwin outlined the five main categories of risk that, in his view, made it extremely unlikely that the dam would be on schedule to produce power in 2024 and within its revised budget of $10.7 billion.

“We haven’t seen any public announcements that BC Hydro has made up the kind of ground that they would need to make up in order to have any chance of achieving river diversion in a year’s time,” Thielmann said. 

“And there may very well be other challenges that haven’t been disclosed at the present time but will become more clear in the months ahead.” 

The B.C. energy ministry said in an April 24 email to The Narwhal that the Site C dam remains on schedule to produce power in 2024 and within its budget of $10.7 billion, an increase of $2 billion over the project’s 2016 budget.

But BC Hydro’s latest Site C project report to the B.C. Utilities Commission hints of potential problems, assigning a yellow status to the project’s schedule, budget and overall project health to indicate “moderate” concerns. 

The project remains cloaked in secrecy, with the NDP government refusing to make public the findings of a “Site C Project Assurance Board” that began meeting early last year. 

 Commitment to reconciliation called into question

The news that West Moberly First Nations will proceed to trial follows an announcement in May that Blueberry River First Nations is returning to court after almost a year of negotiations with the province. 

The Blueberry First Nations allege that the cumulative impacts of resource development in their traditional territory, including intensive fracking operations and the Site C dam, violates treaty rights. 

“This government’s failure to achieve significant reconciliation victories in cases like this calls into question what reconciliation, in this government’s view, is intended to look like,” Thielmann said. 

The NDP government is “being called to task for radical changes on the landscape in the northeast and the threats that Indigenous peoples in the northeast and in the Peace River region are experiencing to their way of life,” he said. 

Willson echoed Thielmann’s comments, saying, “They want to talk reconciliation but they don’t want to reconcile anything.” 

In a rare rebuke, the United Nations has requested that Canada suspend Site C dam construction until the project obtains the “free, prior and informed consent” of Indigenous peoples. 

Thielmann, who also represents Prophet River First Nation, which was in the talks with the B.C. government and BC Hydro, said he can’t yet comment about Prophet River First Nation.

“At this point in time, they continue to have a civil action that is parallel to West Moberly’s,” he said. “Their action has not been suspended or discontinued. They continue to have a civil action that alleges essentially the same thing as West Moberly’s — that the combined effect of the three dams is an infringement of their treaty rights.” 

The B.C. government does not normally comment on cases before the courts. The Narwhal will update our reporting if the government responds to the case.

The 120-day trial to hear the West Moberly civil action is scheduled to begin in March 2022 and will last about six months, according to Thielmann.  

He said the trial will likely include dozens of witnesses and many thousands of pages of evidence about everything from the “cumulative effects of the three Peace River dams within the Peace region to the nature of the West Moberly First Nations’ seasonal round and the traditional mode of life and how it has been radically disrupted and would be radically disrupted by the completion of Site C.” 

Willson said he remains hopeful about the trial’s outcome. 

“The mere fact that we’re going to trial should speak volumes.”

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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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