RAVEN - Respecting Aboriginal Values and Environmental Needs

Justice for the Peace: The Site C Case

BC Hydro’s Site C Project

Context:

BC Hydro’s Site C project is a dam and hydroelectric generating station on the Peace River in northeastern British Columbia. If it is completed, Site C will be the third dam built by BC Hydro on the Peace River. The Site C project is on land covered by Treaty 8. West Moberly First Nations and Prophet River First Nation have both challenged BC Hydro’s Site C project multiple times in the court system. RAVEN trust has raised $306,000 for West Moberly First Nations and Prophet River First Nation’s legal challenges to the BC Hydro Site C project. 

Cases:

Prophet River First Nation v British Columbia (Minister of Environment) 2015 BCSC 1682

This case, heard in the British Columbia Supreme Court in 2015, was a petition by Prophet River First Nation and West Moberly First Nations applying for judicial review of the issuance of the environmental assessment certificate for the Site C project. Their petition was dismissed, and the court found that the issue of infringement on treaty rights under Treaty 8 could not be determined in this proceeding because the claim of infringement relies on matters beyond the decision to issue the environmental assessment certificate for the Site C project. Prophet River First Nation and West Moberly First Nations appealed.

Prophet River First Nation v British Columbia (Minister of the Environment) 2017 BCCA 58

This appeal, heard in the British Columbia Court of Appeal in 2017, was made on two grounds regarding the duties of the Crown: (1) before issuing the environmental assessment certificate, were the Ministers required to determine that the project would not constitute an unjustifiable infringement of constitutionally protected treaty rights, and (2) was there adequate consultation with the First nations, and if appropriate accommodation of their concerns. This appeal of the Prophet River First Nation and West Moberly First Nations was also dismissed. 

Prophet River First Nation and West Moberly First Nations applied to appeal to the Supreme Court of Canada, but the Supreme Court of Canada refused leave to appeal. 

Prophet River First Nation v Canada (Attorney General) 2015 FC 1030

This case, heard in the Federal Court in 2015, was an application for judicial review of the decision of the Governor in Council that the likely significant adverse environmental impacts from the Site C project were justified in the circumstances. Their application for judicial review was dismissed. The court held that a judicial review is not the appropriate proceeding for determining treaty right infringements and that the duty to consult was met. Prophet River First Nation and West Moberly First Nations appealed. 

Prophet River First Nation v Canada (Attorney General) 2017 FCA 15

This appeal from Prophet River First Nation v Canada (Attorney General) 2015 FC 1030, heard in the Federal Court of Appeal in 2016, was also dismissed. Leave to appeal to the Supreme Court of Canada was refused. 

The next series of cases involves West Moberly First Nations claim that the Site C project infringes on their treaty rights under Treaty 8. They are seeking an injunction stopping part or all of the construction of the Site C project pending a final determination of the issue of treaty right infringement at trail. All these cases were heard that the British Columbia Supreme Court in 2018. 

West Moberly First Nations v British Columbia 2018 BCSC 270 – Ruling on case planning 

West Moberly First Nations v British Columbia 2018 BCSC 730 – Application from British Columbia and BC Hydro for more information from West Moberly First Nations. Application allowed. 

West Moberly First Nations v British Columbia 2018 BCSC 1282 – Application by West Moberly First Nations to allow webcasting and archiving. Application allowed in part. 

West Moberly First Nations v British Columbia 2018 BCSC 1165 – Application by BC Hydro to strike pleadings for failure of West Moberly First Nations to provide more information as was previously ordered. Application dismissed. 

West Moberly First Nations v British Columbia 2018 BCSC 1835 – Application by West Moberly First Nation for an injunction. Application refused. Parties directed to agree on a schedule leading to trial on the issue of infringement of treaty rights. 

Why these Cases Matter:

Despite the best efforts of Prophet River First Nation and West Moberly First Nations construction of the BC Hydro Site C project has been ongoing since July 2015. The courts consistently held that the honour of the Crown was upheld given the public interest at stake in the project moving forward. The case for infringement of treaty rights under Treaty 8 has not been heard yet. These cases and future cases will have impacts on reconciliation between Indigenous peoples and Canada. The Site C project will have environmental and economic impacts as well as cultural impacts on Indigenous nations.  

These cases stand in contrast to the Gitxaala and Tsleil-Waututh Nation decisions respecting the Enbridge Northern Gateway and Kinder Morgan Trans-mountain projects.

Go Deeper: 

https://www.sitecproject.com/

https://www.cbc.ca/news/canada/british-columbia/un-site-c-dam-indigenous-rights-agreement-1.4978411

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