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.”
“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.
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.”
Image: Caleb Behn via Zack Embree and Fractured Land