Government of Canada Takes “No Position” in Response to Site C Injunction
May 13, 2018
Fort St. John, B.C., Treaty 8 Territory - In court documents filed on Thursday, the Attorney General of Canada has taken “no position” and filed no evidence to defend against the injunction application brought by West Moberly First Nations to suspend construction of Site C.
If successful, the injunction will halt work on the $10.7 billion-dollar dam, the largest public works project in B.C. history. The suspension would remain in place until there has been a full trial and a binding determination of whether Site C infringes Treaty 8, a process which could take from 18 months to several years to conclude.
In its Response to Civil Claim, also filed Thursday, Canada admits that it did not make a legal determination on whether Site C infringes Treaty 8(1, and states that the issue must either be “tested” by the Court at trial(2 or resolved “in other contexts beyond litigation”(3.
The Treaty 8 First Nations opposed to the dam are now calling on the B.C. Government to follow suit.
“Canada has laid down its weapons. Now it’s time for BC to disarm. Let’s try diplomacy,” said Chief Willson.
“If the Premier truly wishes to respect the constitution and the Treaty 8 rights it protects, he shouldn’t be encouraging BC Hydro to destroy those rights before the courts have the chance to weigh in. The Premier can meet with us and our federal counterparts to work out how best to wind down work on Site C until the question of Treaty infringement is finally decided,” stated Chief Willson.
This is not the first time Canada has parted ways with the B.C. Government over controversial court injunctions. Last summer Canada backed the Tsilhqot’in First Nation’s injunction against provincial permits for the New Prosperity mine, going so far as to bring a federal injunction to stop the permitted work.(4
But Canada’s decision last week appears to be unprecedented. Whereas last summer’s injunction against New Prosperity didn’t involve federal approvals, the federal government has now elected not to defend the authorizations federal decision makers issued for Site C from being struck down by the courts.
1. Attorney General of Canada, Response to Civil Claim, para. 38
2. Attorney General of Canada, Response to Civil Claim, para. 1.
3. Attorney General of Canada, Response to Civil Claim, para. 3.
4. See: https://www.theglobeandmail.com/news/british-columbia/bc-first-nation-to-battle-taseko-mines-plan-in-court/article35840762/; and http://www.timescolonist.com/news/b-c/taseko-mines-halts-exploration-work-at-new-prosperity-1.21912967
Canada’s decision follows a major work stoppage on Site C secured by the First Nations in February. Rather than oppose an interim, interim injunction threatened by the First Nations’ lawyers, BC Hydro abruptly sent contractors home that were in the process of logging a 30-kilometer tract of old growth forests for the project’s proposed transmission line. That work will remain suspended until after the injunction is decided later this summer.
“We have always maintained that Site C is an infringement of the Treaty, and that it shouldn’t go ahead while the issue of infringement is unresolved,” said Chief Lynette Tsakoza of Prophet River First Nations.
“We will defend the Treaty in the courts if we must. But we remain ready and willing to discuss alternatives to Site C with the B.C. Government,” Chief Tsakoza said.
“It is hypocritical for the Premier to seek direction from the courts before taking steps that might affect Kinder Morgan, while refusing to do the same on Site C. Don't our constitutional rights deserve respect? Does the rule of law not apply to northeast B.C.?” said Chief Willson.
First Nations Contact
Chief Roland Wilson, West Moberly First Nations
Legal Team Contact
Tim Thielmann, Sage Legal
1. The Site C Hydroelectric dam is the largest and most expensive public works project in B.C. history. Its current budget is $10.7 billion. Experts such as former BC Hydro CEO, Mark Eliesen have estimated costs will exceed $12 billion if the dam is completed.
2. Site C underwent an environmental assessment overseen by a Joint Review Panel and was approved by the provincial and federal governments in 2014. These approvals were made despite the panel’s findings that Site C would cause significant, unmitigable adverse effects on the environment and on Aboriginal peoples, and the recommendation for an independent assessment of BC Hydro’s load forecasts.
3. Following the EA approvals, West Moberly and Prophet River brought judicial reviews on the basis that the Crown’s consultation process had been inadequate. The courts held that the Crown was not obligated to consider (and had not considered) whether these approvals infringed established rights under Treaty 8. To have the issue of infringement determined, they would need to bring a civil action.
4. Appeals of the judicial review decisions were exhausted in June 2017, by which point the NDP was about to come to power following the May 9, 2017 provincial election. In opposition, the NDP had recognized that Site C would violate Treaty 8, had committed to implementing the UN Declaration on the Rights of Indigenous Peoples, and had promised to send the project to the BC Utilities Commission for an independent review.
5. The project was referred to the BCUC in August 2017. On November 1, 2017 the BCUC concluded that BC Hydro’s load forecast could be satisfied through an alternative portfolio of assets (wind, geothermal, conservation) at approximately the same cost as completing Site C, even though $2 billion had already been spent on Site C.
6. Despite this conclusion, on December 11, 2017, Premier Horgan announced his government’s intention to continue with Site C.
7. On January 15, 2018, West Moberly and Prophet River filed Notices of Civil Claim. They plead that the cumulative effects of the WAC Bennett, Peace Canyon, and Site C dams on the Peace River constitute an infringement of their Treaty 8 rights.
8. The relief sought in the Notices of Civil Claims is a permanent injunction to stop construction and operation of Site C and flooding the Peace River valley. There is no request for damages.
9. On January 31, 2018, West Moberly filed an application for an interim injunction, which seeks:
a. to suspend all work on the project until an expedited trial can occur; or alternatively,
b. to suspend work within identified “critical areas” and prevent flooding of the reservoir prior to trial, provided BC Hydro agrees not to use the time passed or money spent as an argument against a permanent injunction at trial.
10. According to the evidence filed in support of the interim injunction:
a. the Peace River Valley is, and has always been, central to the Dunne-za mode of life protected by Treaty 8 (Affidavit #1 of Chief Roland Willson, and other affidavits);
b. Prophet River and West Moberly stand united in opposition to the Site C project and the infringement of Treaty 8 (Affidavit #1 of Chief Lynette Tsakoza)
c. construction of Site C is causing irreparable harm, including within 13 “Critical Areas” identified by West Moberly (Affidavit #1 of Chief Roland Willson, Affidavit #1 of Rachel Olson)
d. successive BC governments placed constraints on the Joint Review Panel and BC Utilities Commission which tilted the scales in favour of approval for Site C (Affidavit #1 of Harry Swain);
e. BC Hydro’s project management blunders will drive costs above $12 billion (Affidavit #1 of Marc Eliesen);
f. Site C’s footprint (13,500 ha) is 40 times larger than that of the BCUC Alternatives (300 ha) (Affidavit #1 of Dr. Petr Komers); and
g. Mercury contamination from the dams threatens human health and First Nations’ fishing rights (Affidavit #1 of Dr. David Schindler).
11. After reviewing the injunction materials, BC Hydro initially planned to continue construction as planned. However, after the First Nation’s lawyers warned of an “interim, interim injunction” on February 16th BC Hydro suspended all clearing and road building that was occurring within identified “critical areas” and confirmed there were generally no plans for construction within critical areas until the Interim Injunction is heard.
12. The hearing is currently set for 10 days, from July 23 to August 4, 2018.
13. For more information on the Site C litigation, visit www.sagelegal.ca (the “Site C” tab).
14. For information on how to support the West Moberly First Nations and Prophet River First Nation, visit https://witnessforthepeace.ca/5
5 This is an external website that is not managed by West Moberly First Nations, Prophet River First Nation, or Nun wa dee Stewardship Society.