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.