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Treaty 8 First Nations file lawsuits to protect sacred lands, stop Site C Dam

1 July, 2015

This is a guest post by Allison Russell, a lawyer at Rana Law, and Emily Beveridge, an articling student at Rana Law, who are part of the legal team representing a group of Treaty 8 First Nations in their legal challenges against the controversial Site C Dam.

Overview

In the winter of 2014 a group of Treaty 8 First Nations – among them, Doig River First Nation, Prophet River First Nation, and West Moberly First Nations – joined together to challenge the development of the proposed Site C Hydroelectric Dam in the Peace River Valley of northeastern BC (“Site C” or “Project”). The Project was granted federal and provincial environmental approvals on October 14, 2014, following on the heels of a Joint Review Panel (JRP) Report submitted to the federal and provincial Ministers of Environment in May of 2014.   The JRP concluded that the proposed Site C Project would likely cause a number of significant adverse impacts to the rights of Treaty 8 First Nations, and that some of these effects could not be mitigated.  Despite the findings of the JRP, British Columbia announced its final investment decision on December 16, 2014, approving expenditure of $8.8 billion of public funds to construct the Site C Project.


Artist's concept of the Site C dam

The Treaty 8 First Nations Lawsuits

Treaty 8 First Nations have commenced proceedings in both the BC Supreme Court and the Federal Court of Canada challenging the federal and provincial environmental approvals of the Site C Project. In their pleadings, they allege that despite the JRP’s findings, BC and Canada decided to approve Site C with little if any regard to the significant adverse impacts and cumulative effects of the Project on their Treaty rights and on the ecological integrity of the land. The Site C Project, in their view, cannot be justified, because its approval is inconsistent with the Honour of the Crown and the Crown’s fiduciary duty owing to them as Treaty No. 8 rights holders.  Further, the Treaty 8 First Nations say that the Crown failed to adequately consider supply alternatives to Site C, including geothermal and smaller hydroelectric projects at different sites.

First Nations’ Treaty rights are protected under section 35(1) of the Constitution Act, which recognizes and affirms the existing Aboriginal and Treaty rights of the Aboriginal peoples of Canada. As others have noted, Treaty rights, including the right to fish, trap, and hunt, cannot be exercised if the resources which form the basis of these practices no longer exist. This view was upheld by the Alberta Court of Appeal in Lameman v Alberta, where the Court held that governments may be liable for cumulative effects which interfere with the meaningful exercise of Aboriginal and Treaty rights.

Treaty 8 First Nations are being backed by a number of community groups and NGOs, including Amnesty International Canada (AIC) which applied for and was granted intervener status in the upcoming Federal Court judicial review. Craig Benjamin, a Campaigner for the Human Rights of Indigenous Peoples with AIC, has asserted that First Nations’ consent should be required before the Project moves forward.

History of the Site C Dam

The proposed Site C Project is part of a long history of sidelining the rights and interests of First Nations in favour of developing large-scale hydroelectric projects, ostensibly for the greater public good. Site C was initially proposed by BC Hydro in the 1950s as the third in a series of four dams on the Peace River, two of which were built in 1967 (W.A.C. Bennett Dam) and 1980 (Peace Canyon Dam). The Province rejected BC Hydro’s proposal for Site C in 1982 and again in 1989, finding that there was no need for the Project. However, for the last ten years BC Hydro has continued pushing for the Project’s development.

Project Description and Impacts

The Project’s proposed design consists in part of an earth-fill dam measuring 1,050 metres long and 60 metres high, a 1,100-megawatt generating station, and a reservoir that would flood an 83 kilometre stretch of the Peace River Valley and its tributaries. At maximum capacity, the reservoir would cover a total area of more than 9,330 hectares, which is about 21 times the size of Vancouver’s Stanley Park Wildlife habitat, sacred sites, and valuable agricultural land which make up more than 3,000 hectares of the anticipated flood zone will be lost if the Project goes forward.

Environmental Assessment & the JRP Report

On April 19, 2010, the Province (under then-Premier Gordon Campbell) announced its plans to proceed with the approval process for the Site C Project. Less than ten days later, the Province introduced Bill 17, the Clean Energy Act, which exempted the Project from requiring a Certificate of Public Convenience and Necessity from the BC Utilities Commission (BCUC). This exemption allowed Site C to bypass time-consuming regulatory hurdles and avoid public scrutiny by BCUC, which had rejected the Project twice in previous years.

In May 2011, BC Hydro submitted a project description to the BC Environmental Assessment Office, triggering an environmental assessment of the Site C Project at both the provincial and federal levels. A JRP was convened to conduct the environmental assessment of the Project; however, the JRP’s mandate largely excluded substantive consideration of the Project’s potential adverse impacts and infringement on Aboriginal and Treaty rights.

Throughout the environmental assessment process, the Treaty 8 First Nations provided extensive written submissions and oral testimony documenting their concerns regarding the nature and scope of their Treaty rights, the consultation process on the Environmental Impact Statement (EIS), and the Crown’s limited scope of consultation. Most of these submissions were either ignored altogether or omitted from the final draft of the EIS for the Project.

Notwithstanding its limited mandate, the JRP made a number of findings regarding the potential adverse impacts of the Site C Dam on First Nations’ land, interests and constitutional rights. In its Report, the JRP warned that the Project would likely cause “significant adverse effects” on the fishing, hunting, and trapping rights of the Treaty 8 First Nations, many of which would not be capable of mitigation. The JRP further concluded that the cumulative effects of the Project on cultural heritage resources and on the wildlife and habitat of the Peace Valley Region would be significant and in many respects, irreversible.

Beyond concerns about the potentially drastic cultural and ecological impacts of the Site C Project, the JRP questioned both the need for and purpose of the Project as set out by BC Hydro. BC Hydro’s decision to develop Site C comes at a time of extreme unknowns as to the demand for and cost of energy development in BC. What is known is that to date, annual figures have shown that BC is usually a net exporter of energy, casting doubt on the true need for a Project of this magnitude. Accordingly, the Panel concluded that the evidence presented did not show that the new energy would be needed in the timeframe set out by BC Hydro, even with increasing demand projections. 

Partially in response to these findings, BC Hydro has suggested that the energy generated from Site C will be required to fuel development of the LNG sector in BC. The plan to use Site C as a power source for natural gas drilling is still the subject of debate, as many LNG proponents have indicated that they intend to generate their own power by burning the gas harvested from LNG reserves. Despite these assertions, a recent article in the Prince George Citizen has suggested that BC Hydro is in the process of considering eleven different routes for a major transmission line linking Site C to LNG operators in northeast BC. Controversy continues to swirl but one thing remains clear for the Treaty 8 First Nations: BC Hydro has not succeeded in showing that Site C is required to meet BC’s energy demands, with or without ties to the LNG industry.

The JRP also found that BC Hydro neglected to sufficiently consider or investigate less harmful alternatives in seeking to meet the Province’s anticipated energy needs. Compelling evidence  put before the JRP shows that there are a number of alternatives to meet BC’s energy needs which are financially competitive with the Site C Project: smaller hydro projects, wind, and geothermal are just some of the available technologies which could supplement the need for such a large and potentially harmful project as Site C. The findings of the JRP are confirmed in the testimonies of other expert analysts who have spoken out against the Site C Project. For instance, in a report authored for the Peace Valley Landowners Association (PVLA), respected US energy economist Robert McCullough found that from an economic standpoint, Site C is “more than three times as costly as the least expensive option.” Despite these findings, BC Hydro has not investigated alternatives, and intends to move forward with the Project regardless of the immense social and ecological costs.

Get Involved

If Site C is built, Treaty 8 First Nations will lose thousands of hectares of land and resources upon which they rely to sustain their traditional ways of life. Beyond loss of habitat for animal and plant life, the flooding from the Site C Dam’s construction would result in the erasure of numerous sites which are sacred to the communities that stand to be impacted by this project. Construction of the Site C Project would also require the largest withdrawal from the agricultural land reserve in British Columbia’s history.

The Petition to the BC Supreme Court was heard for seven days between April 22 and May 6, 2015.  It is uncertain when the Court will issue its decision. Treaty 8 First Nations will now appear before the Federal Court in Vancouver to argue their case starting on July 20, 2015. To learn more about the cases, contribute to the campaigns or to get involved, visit Join the Circle – No Site C for information.