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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On the banks of the Peace River on Saturday, Grand Chief Stewart Phillip told hundreds of opponents to the Site C dam that he will be handcuffed if necessary to stop BC Hydro’s mega project from moving ahead. 

“From this point forward we have to really focus our efforts on how we’re going to physically stop this project from happening,” Phillip said during a speech at the 10th annual Paddle for the Peace. “The provincial cabinet recently approved permits to allow construction to begin. That’s where the rubber is going to hit the road.”

An emotional Phillip said B.C. is on the eve of an uprising after the government has repeatedly dealt in “bad faith” with First Nations.

Grand Chief Stewart Phillip has vowed to be arrested to stop the Site C Dam.

“If push comes to shove, I for one — being a grandfather of 14 grandchildren who I absolutely adore — I am more than willing to be arrested as long as that will contribute to stopping this project,” he said.

“I know when that moment comes I will not be alone.”

The Last Paddle for the Peace?

About 300 boats took to the water Saturday in what could be the last Paddle for the Peace — held on a stretch of the Peace River that will be flooded if the $8.8 billion Site C dam is built.

Construction is due to start on the dam any day now despite a pending Treaty 8 legal challenge, due to be heard by the federal Supreme Court on July 20.

“This is a watershed moment in the province of British Columbia and in this country,” Phillip said. “We simply can not — we can not allow this to happen.”

Beth Steiner, 8, helps bag lettuce at her parents market garden stand in the Peace Valley. The land the Steiners grow everything from corn to watermelons on will be flooded if the Site C dam is built.

Calls for a moratorium on construction on Site C have gained strength recently with the Greater Vancouver Regional District board, representing 23 local governments and 2.5 million people, voting to ask Premier Christy Clark for a two-year moratorium on construction.

The Peace River Regional District — which includes Fort St. John, the city that would see the most economic activity from the dam — voted on Thursday to write a letter to Clark to request that all construction on Site C be stopped until active court cases regarding the project have been completed.

The B.C. government has been criticized for pushing ahead with the project while ignoring repeated calls for an independent review of costs and demand — a recommendation made by the government’s own panel.

David Suzuki: ‘We Fundamentally Failed’

Famed environmentalist David Suzuki changed his schedule to join the paddle on Saturday (and helped rescue some capsized canoeists while he was at it) because the fight for the Peace Valley is near and dear to his heart. During a keynote speech, he told the crowd about his involvement with stopping the Site C dam for the first time in 1981.

“Thirty-five years later, guess what? We’re fighting exactly the same battles all over again,” Suzuki told the crowd. “What we thought were victories were not victories at all, because we fundamentally failed. We failed to shift the way we see our place on the planet.”

Ranchers Dick and Renee Ardill know the drain of the 34-year fight against the dam all too well. When the dam was first defeated, Dick was a spry 54-year-old. Now he’s 88 and grasps his truck for balance as he walks.

Dick Ardill has spent his 88 years ranching in the Peace Valley. His parents homesteaded the land in 1910.

His daughter Renee is sick of telling their story.

“I’m tired of the whole thing,” she told DeSmog Canada during a break from baling hay. “I’m tired of the stupidity of it.”

“You have to just keep going on and doing your job and, if we lose and they build the thing, we’ll worry about that when the time comes. In the meantime, I’m hoping that someone comes to their senses.”

While the recent rejection of the Peace Valley Landowners Association legal challenge was disappointing, it’s not the end of the world, Renee says.

“The battle goes on.”

Injunctions Will Be Filed to Stop Site C Dam Construction

“This is the tenth year we’ve done this and if BC Hydro and B.C. have their way we won’t be doing it any more,” said Roland Willson, chief of West Moberly First Nation, before canoes were put in the water.

West Moberly Chief Roland Willson.

In an interview with DeSmog Canada, Willson said he’s holding out for the courts to make the right decision.

“The dam is a direct infringement of our treaty rights,” he said.

Willson said injunctions will be filed to stop any construction that will cause “irreparable harm.”

Farmer Ken Boon, who hosts the Paddle for the Peace on his land, says the early construction plans look like a soft start.

“I’m still confident this dam will not be built,” Boon said. “All we’ve got to do is win one court case.”

Ken Boon is confident the Site C dam will not be built.

Boon’s land will be flooded if the dam is built, but he has yet to be approached by BC Hydro about moving.

“I’m pretty sure they’re expecting a lot of these to go to expropriation if things carry on,” he said.

As it stands, Boon and his wife Arlene still aren’t thinking about moving.

‘We’re Being Mowed Over’

Shawna-Marie Phillips is less optimistic. If construction moves forward, a 3,000-man camp will be located one kilometre from her organic farm and ranch.

Sometimes it feels like she’s yelling into the void and nobody’s listening, she said.

Given that the Site C dam is the most expensive public project in B.C. history, yet only one reporter from a major news outlet attended Saturday’s event, Phillips could be forgiven for feeling out of sight and out of mind.

“I feel like we’re being mowed over,” she said.  “I get a feeling that this is the last time.”

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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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The provincial and federal governments have issued an environmental approval certificate for the Site C dam despite acknowledging it will cause significant adverse environmental effects.

“Those effects are justified in the circumstances,” says the decision statement signed by Leona Aglukkaq, Canada’s minister of environment.

The province must still decide whether to proceed with the 1,100-megawatt project based on an investment decision, expected by the end of this year.

“The final decision still has to go through the cabinet, so we’ll still be working to convince them it’s not the best decision,” said Andrea Morison of the Peace Valley Environment Association, a group that has fought the dam for decades.

The $8 billion project would be the third dam on the Peace River and would be located seven kilometres from Fort St. John, B.C.

The dam has been opposed by local farmers, ranchers and the Treaty 8 First Nations because it will flood 87 kilometres of the Peace River, impacting wildlife and flooding 30,000 acres of farmland, including an area the size of the city of Victoria within the Agricultural Land Reserve.

West Moberly Chief Roland Willson has already vowed to challenge the decision in court and has said the province can’t have both the Site C dam and liquefied natural gas (LNG) development, which requires gas from Treaty 8 territory.

The environmental assessment certificate is subject to 77 conditions, including establishing a fund of $20 million to compensate for lost agricultural lands and activities.

In May, a federal-provincial Joint Review Panel issued its report on Site C. The panel was ambivalent in its findings, saying both that the dam could provide cheap power but also that the costs needed to be examined further and that it’s not clear that the power will be needed on the timeline provided.

“The Joint Review Panel considering the dam’s impacts determined that they are so significant that only an ‘unambiguous need’ for the power would justify them. And BC Hydro did not demonstrate such a need,” said Karsten Heuer, president of the Yellowstone to Yukon Conservation Initiative (Y2Y). “We don’t understand the basis on which the B.C. and federal governments could issue their approvals.”

Y2Y has argued that the Site C reservoir would seriously impede wildlife movement in the region.

“The Peace River Valley is located at the narrowest width of the Yellowstone to Yukon region and the existing Williston Reservoir already is a major blockage to wildlife movement,” Heuer said.

The joint review panel’s report included a recommendation to refer the project for review by the independent B.C. Utilities Commission, saying the panel didn’t have the time or resources to comment on the cost of the project.

“All British Columbia Hydro ratepayers should be concerned about that,” said Gwen Johansson, mayor of the District of Hudson’s Hope.

The panel also found that the province has failed to look at alternatives to the Site C dam for the past three decades. New maps released this month indicate B.C. has enough low-impact geothermal energy to power the entire province. 

Read DeSmog Canada's 12-part series on the Site C dam.

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