‘Deck Stacked’ Against First Nations Seeking Site C Injunction, Experts Say

January 19, 2018

Can the Site C dam still be stopped?

It all boils down to one B.C. Supreme Court judge who will decide whether or not to grant First Nations an injunction against the project this spring, according to legal scholars who are keenly watching a new legal case against the $10.7 billion dam.

This week West Moberly First Nations and Prophet River First Nation filed notices of civil action claiming that the Site C dam— along with two existing dams on the Peace River — infringes on rights guaranteed to them in Treaty 8, which promised they could continue their traditional way of life.

The nations requested the court declare approvals for Site C issued by the B.C. and federal governments “unconstitutional,” and asked for an injunction to halt work on a project that will destroy traditional hunting, trapping and fishing grounds, as well as areas rich in berries, herbs and medicines.

But gone are the days of the “war in the woods” in places like Clayoquot Sound and South Moresby, when Indigenous peoples were more easily able to obtain injunctions against resource projects such as industrial logging on their traditional territories.

Today it’s a much tougher slog for First Nations to get an injunction against a resource project, say aboriginal law experts Gordon Christie and John Borrows.

“There’s something really troubling about the whole situation,” Christie, a UBC law professor, told DeSmog Canada. “Looking at this as a legal scholar it just seems like a game has been built that makes it impossible for First Nations to win.”

Borrows, a Canada Research Chair in Indigenous Law at UVic’s law school, said “the deck is stacked” against First Nations in injunction hearings because now “economic interests are often given greater weight than justice issues.”

A shift began in the 1990s, said Christie, when courts became much more likely to determine that the benefits of continuing with a project lay in favour of industry proponents who were creating jobs, rather than in the favour of First Nations striving to maintain a way of life on their traditional lands.

In legal terms, it’s called a “balance of convenience” — an analysis of the costs and benefits of either continuing with an industrial project or halting it, with a single judge deciding which argument carries more merit.

“Is the British Columbian government going to suffer the biggest harm because of all the money they’ve poured into [Site C]?” asked Borrows.

“Or is the court going to say, ‘oh no, actually the greater harm is the loss of the treaty rights and the Crown’s honour?’ It’s really hard to make that calculation because you have to choose between harms and find one that’s worse than the other.”

What happens after the injunction hearing?

If West Moberly First Nations and Prophet River First Nation are denied an injunction, their “important” and “precedent setting” case will most likely eventually wind its way through the B.C. Court of Appeal and then to the Supreme Court of Canada, a process that could take three to six years, the legal experts said.

Christie said the nations ultimately have “a very good chance” of showing that Site C infringes on their treaty rights, but at that point the damage will already have been done and “they’ll get compensation” for a “moral victory.”

Lawyers for the two nations have said a settlement could be in the order of $1 billion, based on precedents set by cases such as the 1975 settlement awarding $225 million (roughly $1 billion today) to Indigenous groups affected by the massive James Bay hydro project.

“Governments are happy just to wait and have the courts tell them down the road well, that wasn’t right and then to have to pay compensation, which really means taxpayers pay,” said Christie. “The government officials don’t pay. They don’t lose. Nothing hurts them.”

Tim Thielmann, a Victoria lawyer who is part of the new legal team assembled by the two Treaty 8 nations, said the last thing the First Nations want is to be compensated for the loss of the land.

“What they really want is the land,” Thielmann said in an interview. “We don’t think that when the indigenous signatories entered treaty that the idea would be that the Crown could continue destroying the land as long as they paid them a bunch of money after they were through with it.” 

What is Treaty 8 and why does it matter?

Treaty 8 was signed in 1899 at Lesser Slave Lake in central Alberta. It covers a huge geographical area of Canada, including B.C.’s northeast.

In May 1900, eight Dunne-Za (Beaver) leaders signed the treaty in Fort St. John, including Chief Bigfoot, whose direct descendants include First Nations members like Helen Knott who are fighting Site C.

First Nations viewed a treaty with the federal government as a way to guarantee they could continue to practice their way of life as European settlers moved into their traditional territory and competition for land and resources intensified.

The federal government, for its part, was intent on opening up northern lands for agriculture, settlement, resource extraction and transportation routes to the Klondike gold rush.

First Nations were only willing to agree to the treaty if it spelled out their right to continue their hunting and fishing traditions and way of life.

In the words of the Treaty 8 Commissioners, “… we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and they would be as free to hunt and fish after the treaty as they would be if they never entered into it.”

What happened next?

Over the next century, B.C.’s Treaty 8 nations saw vast tracts of their traditional territory taken up by industrial development.

The Dunne-Za lost the heart of their homeland in 1968 when the W.A.C. Bennett dam flooded an area the size of Kuwait. The Peace Canyon Dam, which became operational in 1980, flooded a further stretch of the Peace River Valley.

Now the rest of the valley is threatened by Site C, which would inundate 145 kilometres of the Peace River and its tributaries, destroying dozens of areas of cultural importance to First Nations, including burial sites known through oral history.

“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 [and West Moberly] have with the Peace, and infringing Treaty Rights,” the civil action states.

Didn’t the First Nations go to court already over Site C?

West Moberly First Nations and Prophet River First Nation lost previous court cases against Site C that sought to overturn federal and provincial approvals and permits for the project.

The courts ruled that neither the B.C. cabinet nor the federal cabinet had the expertise to determine whether or not Site C violated treaty rights before green-lighting the project and issuing permits.

The rulings found that only the courts could answer the question of potential treaty rights violations from Site C.

So, until now, the courts have never examined the issue of whether or not Site C violates treaty rights.

The door opened for a civil action following the NDP government’s December announcement that it will continue with Site C because the Liberals pushed it past the “point of no return,” a rationale disputed by project finance and energy experts who said the NDP’s math was sadly lacking.

“There’s a very compelling case by multiple expert economists to suggest that the cost of terminating the project is far less than completion,” said Thielmann. 

What does this have to do with me?

Christie pointed out that all Canadians are parties to Treaty 8, a relationship in which the Crown is supposed “to act honourably.” Treaties, he said, “made Canada possible.”

“We’re the other side of the coin, the other party. Can we pressure the Crown to act honourably instead of waiting for a court to tell them after the fact ‘well, that wasn’t honourable?’ ”

“Is it really honourable to flood one of the last remaining stretches of the valley that has had such an important role in the lives of Treaty 8 nations?”

In an e-mailed statement, the B.C. Ministry of Indigenous Relations and Reconciliation told DeSmog Canada that the government remains “steadfastly committed” to adopting and implementing the UN Declaration on the Rights of Indigenous Peoples, which states that resource projects should only proceed with the “free, prior and informed consent” of affected peoples.

The ministry also said it respects the right of West Moberly First Nations and Prophet River First Nation to seek redress through a legal claim, and that it will respond to their claims in court.

The Premier’s office, asked if the government is prepared to add another $1 billion to Site C’s price tag, said in an e-mail that it cannot comment on a matter before the courts.

Borrows said it is possible that a last-minute ruling will be made in favour of the First Nations.

“Even if it happens at the eleventh hour that could still see the dam built but not operationalized. That’s always a possibility.”