The West Moberly and Prophet River First Nations filed a civil suit in the Supreme Court of British Columbia Tuesday claiming the Site C dam, along with two other hydroelectric projects on the Peace River, unjustifiably infringe on their constitutionally protected rights under Treaty 8.
The two nations, whose traditional territory will be flooded by the Site C reservoir, have also requested an injunction on Site C construction work be reviewed by the courts this spring.
“The cumulative impact of the Bennett, Peace Canyon, and Site C Dams is to turn the Peace River into a series of reservoirs, destroying the unique cultural and ecological character of the Peace, severing the physical, practical, cultural and spiritual connection the Prophet have with the Peace, and infringing [West Moberly and Prophet’s] Treaty Rights,” the civil action states.
The action also requests the courts find the approval of Site C “unconstitutional, void, and of no force and effect.”
Significant adverse impacts of Site C for First Nations: panel
The $10.7 billion Site C dam, initially approved by the BC Liberal government in 2014, was given a final go ahead by the B.C. NDP government in December after it was sent for an expedited review by the B.C. Utilities Commission.
In its review the commission noted the question regarding Site C’s infringement of Indigenous rights remained unresolved and represented a risk to the Crown should the project go ahead.
Under Treaty 8, Canada promised to preserve the rights of First Nations to hunt, trap, fish and continue their way of life on their territory.
The environmental review panel appointed by the federal and provicincial governments 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 on whether 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.
Site C damages estimated at $1 billion
The West Moberly and Prophet River First Nations now estimate damages caused by the completion of Site C could amount to $1 billion.
Financial compensation for damages caused by hydroelectric development is not without precedent. In 1975 the James Bay and Northern Quebec Final Agreement awarded Indigenous groups affected by hydro $225 million — worth roughly $1 billion today.
Tim Theilmann, lawyer from Sage Legal who is part of the West Moberly and Prophet River legal team, said the nations are not at this time seeking damages.
“After having discussed it with the legal team we don’t believe the project is past the point of no return,” Theilmann told DeSmog Canada.*
“We believe the balance of convenience, which the judge will have to weigh, favours the granting on an injunction to suspend all work on the project.”
During a press conference announcing Site C's continuation, Premier John Horgan said he recognized First Nations stand opposed to Site C and said his government remains committed to reconciliation and the principles of the UN Declaration on the Rights of Indigenous Peoples.
“We are fighting for the land and the preservation of the Dunne-za way of life. But we are also fighting for values all British Columbians share, like transparency and economic prudence.” https://t.co/tUQ9ycKthk— DeSmog Canada (@DeSmogCanada) January 16, 2018
“When it comes to reconciliation or working with Indigenous leadership, look there has been over 150 years of disappointment in British Columbia. I am not the first person to stand before you and disappoint Indigenous peoples,” Horgan said.
“But I am the first, I think, to stand before you and say that I am going to do my level best to make amends for a whole host of decisions that previous governments have made to put Indigenous peoples in an unwinnable situation.”
Infringement of Treaty rights unanswered question
The Supreme Court of Canada previously refused to hear an appeal brought by the West Moberly and Prophet River First Nations that argued the federal government failed to consider their constitutionally protected treaty rights when granting permits for Site C.
The nations filed for 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. It was an appeal of that ruling the Supreme Court of Canada refused to hear in June 2017.
The journey through the court system has left members of West Moberly and Prophet River First Nations wondering who bears the responsibility for determining whether or not Site C infringes their rights as a treaty nation.
This new civil action may resolve that question.
The First Nations will also seek the disclosure of previously withheld government and BC Hydro documents.
“We need more information about the project’s schedule, budget and ongoing geotechnical challenges to accurately estimate the implications of suspending construction until our Treaty infringement claims are decided at trial,” West Moberly Chief Roland Willson said in a statement.
“We are fighting for the land and the preservation of the Dunne-za way of life. But we are also fighting for values all British Columbians share, like transparency and economic prudence.”
Prophet River Chief Lynette Tsakoza said documents released during disclosure could help shed light on the escalating costs of the Site C project, which in 2014 was projected to cost $8.3 billion.
“We’re not just asking the court to save the Peace River valley, but to save British Columbians billions of dollars by scrapping this ill-conceived, outmoded and unneeded boondoggle unravelling in plain sight,” stated Chief Tsakoza.
*Correction Tuesday January 16, 2018 1:35 pm PST: This article incorrectly stated the West Moberly and Prophet River First Nations were seeking damages in their civil suit. A correction has been made to clarify the First Nations are rather seeking an injunction and not damages as their legal team believes the project is not past the point of no return. Comments by a member of the legal team, Tim Thielmann, have been added to clarify this point.
Photo: Garth Lenz| DeSmog Canada