There is no bedrock at Site C. The dam is being built “on the geological equivalent of billiard balls,” according to Harry Swain, former chair of the Joint Review Panel on Site C. Engineers have warned for decades that the unstable, landslide-prone shale at the site is unsuited for a dam which has to withstand tremendous pressure from the impounded water. In addition, the L-shaped dam design itself is novel and untested. In February 2021 the Horgan government announced its decision to continue building Site C. This will require a major redesign of the critical structures to support the proposed earthfill dam.

The instability of shale layers at the dam site is compounded by seismic risk. Site C is located in a seismically active area that can become critically stressed during fracking operations, which are dotted across the valley. There are several fracking sites in close proximity to Site C and the other two dams on the Peace River. According to The Narwhal, more than 10,000 earthquakes occurred in the wider area in 2017 and 2018, including one that shook the Site C dam construction site, forcing workers to evacuate.

Here's an excellent summary of Site C risks by investigative journalist Ben Parfitt.

The B.C. Utilities Commission found in 2017 that the province could obtain power equivalent to that generated by the Site C dam from the province's existing hydroelectric infrastructure, at a savings of billions of dollars. If additional power were needed, alternative energy sources such as wind and geothermal could provide similar benefits to ratepayers as the Site C project, with an equal or lower cost. 

That was in 2017. Since then, the dam costs have ballooned. A recent article by Harry Swain, former chair of the Joint Review Panel on Site C, quotes estimates that the total costs could be between $12.5 and $14 billion. That is, assuming the geological conditions will allow safe completion at all.

Treaty No. 8 was originally negotiated at Lesser Slave Lake in 1899 between the Crown and a number of Indigenous groups. The treaty was ratified by the Crown in 1900. The ancestors of present-day West Moberly adhered to the treaty in 1914.

Prior to being reduced to writing (in English) the treaty was negotiated and concluded orally. The Crown made several oral promises to induce the Indigenous peoples into joining the treaty, including that the “the treaty would not lead to any forced interference with their mode of life.” The Supreme Court of Canada has confirmed several times that these oral promises are part of the treaty.

Under Treaty No. 8 the Crown acquired a power to “take up” land for settlement, mining or other purposes. However, Treaty No. 8 guarantees that Treaty Nations would always be able to continue hunting, fishing, trapping and gathering throughout the treaty territory. The Crown’s right to take up land cannot override the obligation to safeguard these rights and avoid “forced interference” with West Moberly’s traditional mode of life.

West Moberly First Nation is suing British Columbia, Canada, and BC Hydro. The civil claim alleges that Site C, in combination with the previous two dams on the Peace River, is an unjustified infringement of West Moberly rights under Treaty No. 8. Site C and the previous two dams will poison fish with methylmercury, devastate caribou populations, and desecrate sacred burial grounds, ancient gathering places, and other spiritual areas, all of which constitutes infringements of the rights guaranteed under Treaty No. 8. 

The civil action relies on section 35 of Canada’s Constitution Act, 1982, which “recognizes and affirms” pre-existing Aboriginal and Treaty rights. Under Treaty No. 8, the Crown has an obligation to manage and protect the treaty lands to ensure that West Moberly is able to continue meaningfully exercising its treaty rights.

West Moberly alleges that the treaty does not allow the Crown to use the “taking up” power to construct large hydroelectric dams which permanently destroy large tracts of treaty lands vital to West Moberly. The Peace and its tributaries are fundamental to West Moberly’s very identity, and central to the seasonal round of hunting, fishing, ceremony and knowledge transfer to future generations.

West Moberly also alleges that the damming of the Peace infringes West Moberly’s Aboriginal rights to carry out religious and spiritual practices, which is contrary to protections for religious expression under Canada’s Charter of Rights and Freedoms, and that it is contrary to Canada’s international obligations under the U.N. Declaration on the Rights of Indigenous Peoples.

The cumulative impact of the W.A.C. Bennett Dam, Peace Canyon Dam, and Site C Dam would be to turn the Peace into a series of reservoirs, destroying the unique cultural and ecological character of the Peace and severing the physical, practical, cultural, and spiritual connection West Moberly has with the Peace.

If Site C is completed, the ability of West Moberly members to practice their seasonal round and mode of life will be fundamentally and forcibly interfered with. Further, there is a chance that Site C will catastrophically alter the Peace through ecological disaster, as landslides or dam failure could be caused by earthquakes induced by nearby fracking operations.

Site C has more significant adverse environmental effects than any project ever examined in the history of Canada’s Environmental Assessment Act, according to UBC researcher Karen Bakker. This includes the destruction of boreal forest, destruction of critical habitat of more than 100 vulnerable species, methylmercury contamination of fish species, and downstream impacts threatening the Peace Athabasca Delta and Wood Buffalo National Park. 

Learn more about Site C’s impacts on farmland and food security, the seismic threats of nearby fracking operations, and the methane emissions associated with dams and reservoirs. 

If the court confirms that the flooding of the Peace River is an infringement of Treaty No. 8, the Crown must attempt to “justify” the infringement. But in the ground-breaking Tsilhqot’in case, the Supreme Court of Canada has imposed a very strict test for justification, requiring the Crown to prove that the infringing decision:

• Furthered a substantial and compelling objective;
• Was rationally connected to such an objective;
• Was “minimally impairing” of Aboriginal and Treaty rights; and
• Had benefits outweighing such impacts.

It is West Moberly’s position that the B.C. government’s decision to build Site C cannot possibly meet this test.  The BC Utilities Commission and independent experts have concluded that alternatives such as wind, solar and geothermal could meet B.C. energy needs for the same or a lower cost than Site C. West Moberly will bring evidence that Site C will have 40 times the environmental footprint of those alternatives. It is hard to see how such impacts could ever be considered “minimally impairing” of Aboriginal and Treaty rights. If the Crown cannot justify the infringement, its actions in approving construction and operation of Site C will be declared unlawful and unconstitutional.

The intention of West Moberly in bringing this civil action is to stop the Site C dam, protect the Peace River Valley, and to secure meaningful legal protection for Treaty and Aboriginal rights. The court has not yet had the chance to decide whether Site C is an unconstitutional infringement of Treaty No. 8, and West Moberly now has the opportunity to take that case to trial. The court has said that trial must be held before the Peace valley is flooded. Site C flooding is currently scheduled for the fall of 2023. West Moberly and its legal team are currently in the process of collecting and reviewing mountains of documents (over 100,000 documents thus far), drafting legal arguments and other pre-trial applications, preparing expert reports, consulting Elders and other knowledge holders, and taking other critical steps to prepare for trial.

They need your help.

By supporting the legal challenge, Canadians can help make sure that West Moberly is well represented in court, where the Nation will be facing a battery of well-resourced government and BC Hydro lawyers. While legal cases can be unpredictable, the West Moberly legal team is confident in the strength of their arguments and evidence. 

The 120-day trial is expected to begin in March of 2022 and for judgement to be rendered before the date scheduled for the flooding of the Peace River in the fall of 2023.

Your donations are urgently needed to help West Moberly with the costs of this historic court case. Donations will help fund evidence collection and the development of legal arguments. For every donation of $100 or more, a yellow stake will be planted in your name on a promontory overlooking the Peace. Hundreds of stakes are in the ground already: it’s not too late to add yours!

All the funds raised for the Stop Site C Dam campaign go to Indigenous litigation. 85% of the funds raised go to West Moberly First Nations to fund their legal challenge. RAVEN used to levy 15% as administrative costs to sustain our operations. However, as of 2021, the 15% levy is placed into our Discretionary Litigation Fund (see below). 

If a legal challenge is terminated, and the money raised exceeds the litigation expenses, we place the remaining funds into the Discretionary Litigation Fund. We use the money in the Discretionary Litigation Fund to add funds to any of our litigation campaigns that need extra funds for any reason (e.g. to respond to a Crown motion, or to commission additional expert reports).