Honouring Treaty Promises and Restoring Confidence in Federal Site C Decisions

21/11/15

Author:

Peace Valley Landowner Assoc. [mailto:pvla@xplornet.com]

From: Peace Valley Landowner Assoc. [mailto:pvla@xplornet.com]
Sent: November 21, 2015 1:09 PM
Subject: Honouring Treaty Promises and Restoring Confidence in Federal Site C Decisions

SS #2, Site 12, Comp. 19, Fort St. John, British Columbia, V1J 4M7

FOR IMMEDIATE RELEASE

November 21, 2015

Honourable Jody Wilson-Raybould, Minister of Justice
Honourable Catherine McKenna, Minister of Environment and Climate Change

Dear Honourable Ministers,

Honour Solemn Treaty Promises and Restore Confidence in Federal Site C Decisions

Please find enclosed our letter requesting that your new government take steps to honour solemn treaty promises and restore open, transparent and accountable federal government decision-making regarding the controversial $8.8 Billion Site C Dam project on British Columbia’s Peace River.

We ask for your personal involvement and commitment to make Site C an urgent government priority. Time is running out. Preliminary construction has started. The Peace Valley is beginning to be destroyed for future generations of indigenous and non-indigenous people.

In our letter we outline immediate steps the new federal government can take to start:

Honouring solemn treaty promises made to First Nations impacted by Site C,
Restoring openness and transparency to federal Site C decisions, and
Restoring public confidence in federal Site C decisions.

Site C presents a once-in-a-mandate defining opportunity to implement your mandate to:

Renew the most important relationship we as Canadians have – that with Indigenous Peoples - based on recognition of rights, respect, co-operation and partnership,
Respect and uphold Treaty Rights,
Review and modify the federal Site C litigation strategy consistent with the above commitments,
Take immediate steps to restore public confidence in federal environmental assessment decisions, permits, processes, oversight, and enforcement,
Set and meet a higher bar for openness and transparency in government, and
Identify, research and pursue other renewable energy options that are more effective at tackling climate change, minimizing the destruction of prime agricultural land, and promoting employment and economic spin-offs, especially for Indigenous Peoples.

Given the urgency, we request a response within the next 2 weeks. We also request an early opportunity to meet with you in Vancouver or Ottawa to answer any questions and provide additional information on Site C.

Sincerely,

Ken Boon, President
Peace Valley Landowner Association

250-262-3205 or 250-262-9014

November 21, 2015

Honourable Justin Trudeau, Prime Minister of Canada
Honourable Jody Wilson-Raybould, Minister of Justice
Honourable Catherine McKenna, Minister of Environment and Climate Change
Honourable Hunter Tootoo, Minister of Fisheries, Oceans and the Canadian Coast Guard
Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs
Honourable Lawrence MacAulay, Minister of Agriculture and Agri-Food
Honourable Marc Garneau, Minister of Transport
Liberal Members of Parliament for British Columbia

Dear Prime Minister Trudeau, Honourable Ministers and BC Liberal MPs,

Honour Solemn Treaty Promises and Restore Confidence in Federal Site C Decisions

At the outset, let me congratulate you on forming a government committed to making real, positive change both in what the federal government does, and how it does it.

I am writing on behalf of the Peace Valley Landowner Association (PVLA) to urgently request the assistance of your new government to restore open, transparent and accountable federal government decision-making regarding the controversial $8.8 Billion Site C Dam project on British Columbia’s Peace River.

The decisions your government makes on Site C over the upcoming days and months present a once-in-a-mandate defining opportunity to demonstrate your commitment to:

Set and meet a higher bar for openness and transparency in government,
Renew the most important relationship we as Canadians have – that with Indigenous Peoples - based on recognition of rights, respect, co-operation and partnership,
Respect and uphold Treaty Rights,
Review and modify the federal Site C litigation strategy consistent with the above commitments,
Take immediate steps to restore public confidence in federal environmental assessment decisions, permits, processes, oversight, and enforcement, and
Identify, research and pursue other renewable energy options that are more effective at tackling climate change, minimizing the destruction of prime agricultural land, and promoting employment and economic spin-offs, especially for Indigenous Peoples.

In the balance of this letter I will elaborate on this unique opportunity and litmus test of your government’s commitment to real change.

Who is the Peace Valley Landowner Association?

PVLA is a group of farmers and residents affected by the Site C dam. We are part of a large, diverse group of individuals, organizations and indigenous leaders who have called for the suspension of construction to allow time for further independent review of Site C and the completion of court cases challenging project approvals. Some of the many organizations and individuals who share our concerns are listed below.

Of particular note, two respected individuals who support a delay in Site C construction are Dr. Harry Swain, economist and chair of the federal/provincial Site C Joint Review Panel and a respected former federal public servant and Mr. Richard Bullock, former chair of BC’s Agricultural Land Commission.

Dr. Swain is on record as saying that the failure to fully consider alternatives to Site C such as wind, solar, and geothermal amounts to a “dereliction of duty.”

Mr. Bullock is on record as saying the removal of prime agricultural land from the Agricultural Land Reserve for Site C is a “sin against humanity.”

Why doesn’t the Site C Dam have social licence?

The sole agency independent of the proponent (BC Hydro) and its sole shareholder (the Province) to examine Site C was the federal/provincial Environmental Assessment Joint Review Panel chaired by Dr. Harry Swain. In a familiar pattern under the previous Conservative government, this environmental assessment process had many failings, including a compressed hearing timetable, lack of resources for intervenors, and no opportunity for cross-examination. A further description of procedural flaws in the review of Site C is listed in Appendix A. [1]

In its May 2014 Report, the Joint Review Panel found:

the need for Site C has not been demonstrated,
it had neither the information, time or resources to conclude on the accuracy of the cost estimates put forward for Site C, and
Site C and energy alternatives should be subjected to further review by the BC Utilities Commission.

The Joint Review Panel made numerous other findings that call into question the wisdom of proceeding with Site C in the absence of demonstrated need concluding:

The Panel was asked to present evidence that could lead to justification of the environmental, social, economic, health and heritage costs of the Project. Those costs are large, and governments in the past have been cautious about licencing projects with significant adverse residual effects. Justification must rest on an unambiguous need for the power, and analyses showing its financial costs being sufficiently attractive as to make tolerable the bearing of substantial environmental, social, and other costs. [Page 308 – JRP Report]

Other experts not retained by BC Hydro or the Province of BC also found that the need for the Site C dam had not been demonstrated, and confirmed or added to the JRP findings noting:

1. Alternatives such as solar/wind backed by geothermal/natural gas would be half the cost and save BC taxpayers $4 billion+ in capital costs as well as resulting in lower unit energy costs. Refer to the report by respected energy economist Robert McCullough in Appendix B or video report at https://vimeo.com/131220910;

2. Renewable alternatives would generate more long term economic spin-offs and employment for indigenous and non-indigenous communities. Refer for example to the information in Appendix G on Geothermal in the November 14, 2014 final draft report by KPMG entitled “Economic and Social Impacts of the Clean Energy Sector in B.C.”;

3. The government would saved $200 million or more by delaying Site C for 2 years to properly research other renewable options - whether or not Site C proceeds. Refer for example to the analysis of savings from a delay to the start of Site C set out in Appendix C;

4. The lands flooded by the Site C dam reservoir would create a permanent significant adverse impact on the environment and destroy:
(a) agricultural land that could provide fruit/vegetables for 1 million people which is needed now more than ever in light of climate change and the California drought,
(b) critical wildlife habitat,
(c) significant archaeological and historic sites, including two of BC’s earliest fur trading posts;

5. Discount rates used in the supporting financial analysis were not appropriate and are inconsistent with the approach recommended by the CD Howe Institute [2];

6. Site C would increase electricity rates for hard pressed BC ratepayers significantly beyond the current phased increase of 28%;

7. Site C is not a green project and has a greater carbon footprint than other renewable alternatives. Refer for example to correspondence at Appendix D; and

8. Site C would help push the debt load of the province to its limit (95% debt-to-revenue ratio) crowding out other projects and putting its Triple-A rating at risk. BC’s ability to make a meaningful contribution to upcoming federal infrastructure initiatives could also be significantly reduced.

Earlier this year Local Governments and Local Government organizations, including UBCM and the Metro Vancouver Board, voted overwhelmingly to support a moratorium on Site C construction to allow time for further expert and independent review of the above issues. The Site C materials presented to the Metro Board are included at Appendix E for your reference.

Why doesn’t the Site C Dam have First Nations’ support?

The Federal government is running roughshod over First Nation Treaty Rights.

Despite previous government statements that reconciliation is a top priority, the Site C Dam will have unjustified permanent adverse impacts on constitutionally protected Treaty Rights such as the right to hunt, fish and carry out cultural activities on the last remaining undammed portion of the Peace River. This comes at a time when the Peace Region is subject to the cumulative impacts of massive natural resource extraction, in particular oil and gas activities. Soon, Treaty Rights will be nothing more than hollowed out promises, incapable of being honoured.

We need further expert, open and independent review to determine if this project is even needed and to properly assess energy alternatives. Without this work there is no way to justify the adverse environmental impact under existing environmental statutes, let alone satisfy the constitutional obligation to demonstrate minimal impairment of Treaty Rights before purporting to justify any resulting infringement.

This is especially so since there is clear and persuasive evidence of cost-effective renewable alternatives to Site C that would have minimal or no impact on the exercise of Treaty Rights.

Are Federal Site C Permits Protecting Key Habitat and Other Interests?

No. Please refer to the attached letter in Appendix F setting out examples of permit violations that do not appear to be taken seriously by federal government departments.

What Immediate Steps Are We Urgently Asking Your Government to Take?

A. Honour Solemn Treaty Promises

Under our Canadian Environmental Assessment Act, 2012 (CEAA 2012), Parliament has charged the federal Cabinet with an important responsibility. Specifically:

Where a federal Minster of the Environment has determined a project will cause significant adverse environmental effects despite all mitigation measures in place – as is the case for Site C - the federal Cabinet must consider and determine the fundamental question of whether those effects are justified in the circumstances. In this deliberation and decision, Cabinet represents all Canadians. The decision must not be, or appear to be, avoided or delegated.

As non-indigenous citizens committed to the project of reconciliation, we request that:

1. When deliberating on whether significant harm to the environment resulting from Site C is justified under CEAA 2012, Cabinet expressly consider and determine whether that harm would infringe the solemn promises made to Indigenous People under Treaty. In making such an important decision, we do not want our government to hide behind narrow technicalities to avoid confronting this fundamental issue. This does not further reconciliation.

2. When Cabinet determines that environmental harm has a substantial risk of infringing Treaty promises made, then as a matter of federal policy, Cabinet will find the infringement is not justified. The circumstances where Cabinet finds such harm and such infringement justified, should be the rare exception, and the threshold should, as a matter of policy, be very high.

3. The federal government announce publicly by the end of this year that the practices set out in paragraphs 1 and 2 are:
(a) adopted as part of its commitment to honour the promises made to Indigenous Peoples under Treaties, and to further the project of reconciliation in Canada, and
(b) will be employed to conduct a further Cabinet review of the previous government’s Site C dam approval under CEAA 2012.

B. Restore Openness and Transparency to Federal Site C Decisions

Citizens rely upon public processes and the public record to ensure the implementation of our environmental protection legislation.

In the case of Site C, the only public and independent review of the project found that Site C is not needed at this time and that alternatives to it have not been adequately researched. Further, as noted above, the federal Minister of Environment determined that Site C would cause significant adverse environmental harms that could not be mitigated.

The federal Conservative Cabinet determined that these harms were justified, but the only reasons given referred to the adequacy of First Nations consultation. Cabinet was utterly silent on how a project a) that is not needed, b) which likely has better alternatives, and c) which will cause significant environmental harm, is justified in the circumstances.

The federal government then invoked cabinet secrecy to avoid disclosing the information Cabinet relied upon for its decision. In a Federal Court challenge, the Court upheld the Cabinet’s decision based upon a presumption of proper conduct in the absence of any record upon which the Court could conduct a review.

As citizens we have no basis of knowing whether Cabinet even considered how a project that is not needed can justify the environmental harms that it will cause or how Cabinet reconciled these apparent contradictions.

In the name of openness and transparency, we request that:

4. The federal government publicly release the documents upon which former Prime Minister Harper’s cabinet relied to decide that the benefits of Site C outweigh the significant adverse environmental impacts.

C. Implement Other Measures to Restore Public Confidence in Site C Decisions

Time is needed to correct the many flaws in current federal government decision-making processes and to allow for proper open, expert and independent review of Site C alternatives. We request that you:

5. Place a 2 year moratorium on issuance of further federal permits required for Site C to allow time for a full review of the federal permitting and enforcement processes to ensure they fully respect Treaty Rights and minimize any permanent or temporary adverse environmental impacts.

6. During the 2 year moratorium,
(a) establish a joint First Nation/Federal Government consultation framework for major projects, including Site C, which complies with both Canadian law and the UN Declaration on the Rights of Indigenous Peoples, and
(b) join the call for open, independent and expert review of Site C by the BC Utilities Commission and the Agricultural Land Commission with full procedural safeguards and cross-examination.

7. Take measures, as necessary, in addition to those outlined above, to restore public confidence in federal government Site C decisions and oversight.

8. Accept our personal invitation to attend the Paddle for the Peace in 2016 and see for yourself what is at stake.

Conclusion

It is 2015. Public processes for constructing a dam of Site C’s magnitude need to be rigorously open, transparent and accountable in order to obtain community social licence as well as avoid unjustified infringement of Treaty Rights.

Time is running out. Preliminary construction has started. The Peace Valley is beginning to be destroyed for future generations of indigenous and non-indigenous people. We would welcome an opportunity later this month to brief you and BC Liberal MPs on Site C in Vancouver or Ottawa.

We urge you to act immediately to restore public confidence. We urge you to do this not just for the farmers and residents of the Peace River valley, but for indigenous and non-indigenous people, their children and grandchildren across British Columbia and across Canada so they have an opportunity to experience first-hand the benefit of real change in government and see the remaining Peace River valley in its pristine state.

Sincerely,

Ken Boon
President
Peace Valley Landowner Association

Cc: Organizations and individuals concerned about Site C

Examples of Organizations & Individuals Deeply Concerned about Site C

Dr. Harry Swain, Economist and Chair of the Site C Joint Review Panel
Mr. Richard Bullock, Past Chair of the Agricultural Land Commission
Union of BC Municipalities
Greater Vancouver Regional District (Metro Vancouver)
North Central Local Government Association (NCLGA)
Association of Vancouver Island & Coastal Communities (AVICC)
Peace River Regional District (PRRD)
Gwen Johansson, Mayor of District of Hudson’s Hope
UNESCO World Heritage Committee
David Bond, Former Chief Economist HSBC Bank Canada
Dan Potts, Retired Executive Director, Association of Major Power Customers of BC
Robert McCullough, internationally respected energy economist
Marc Ellison, Former CEO of BC Hydro
BC Government Employees Union
Canadian Union of Public Employees
National Farmers Union
Eric Anderson, Economist
BC Northern Chiefs Alliance
BC First Nations Summit
Union of BC Indian Chiefs
Assembly of First Nations
BC First Nations Leadership Council
West Moberly First Nations
Prophet River First Nation
Treaty 8 Tribal Association
BC Women’s Institute
Peace Valley Landowner Association
Peace Valley Environment Association
BC Public Interest Advocacy Centre
Amnesty International
BC Cattlemen’s Association
Skeena Watershed Conservation Coalition
Sierra Club of BC
Wilderness Committee
Yellowstone to Yukon Conservation Initiative
Canadian Parks and Wilderness Society
Arlene Boon
George Smith
Rafe Mair
Harold Steves
David Suzuki

[1] This lack of procedural safeguards was compounded by the decision of the BC to exempt Site C from the expert, open and independent review to which such a project would normally be subject by the British Columbia Utilities Commission and the Agricultural Land Commission.

[2] C. D. Howe Institute, The Valuation of Public Projects: Risks, Cost of Financing and Cost of Capital, Commentary No. 388, September 2013, Pages 3-4.

Appendices

APPENDIX A: Site C legal challenges expose flaws in federal and BC environmental assessment processes (November 19, 2014)