Legal Briefing from Rana Law

On September 12, Prophet River and West Moberly First Nations are facing off against the Federal Government and BC Hydro over the Site C Dam in the Federal Court of Appeal. They will be asking the Court whether Canada violated the constitution when it gave environmental approval for the dam without determining – or even considering – whether the significant adverse environmental effects of the project would infringe Treaty rights.

 The Site C Dam is a large hydroelectric project on the Peace River in northeastern British Columbia. This region has seen decades of oil and gas, forestry and mining development. The Peace River Valley, which holds significant cultural value for the Treaty No. 8 First Nations, has already been impacted by two large hydroelectric projects built in the 1960s and 1970s. The remaining portion of the Peace River Valley is extensively used by First Nations, including Prophet River and West Moberly, for cultural purposes and for the exercise of their Treaty rights.

 Although the First Nations put Canada on notice that the dam would infringe their Treaty rights, and under law needed to be subjected to a stringent “justification” test, Canada decided it could authorize the dam without considering whether it would infringe Treaty rights. Canada took the position that as long as there had been adequate consultation with First Nations, it could proceed with an approval without addressing the First Nations’ assertions of Treaty infringement.

 The outcome of this appeal will clarify Canada’s obligations when authorizing major projects that are found to have significant, immitigable adverse environmental effects on the use of lands and resources by Aboriginal people. Can these projects be authorized based only on an assessment of the adequacy of consultation? Or can substantive Treaty rights be protected by requiring Canada to apply a more stringent justification standard before making a decision?      

 The federal court of appeal will hear the case September 12th in Montreal. Members of Treaty 8 First Nations will be in attendance.

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